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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


w 


SHORTER  SELECTION 


OF  CASES  ON 


THE   CONFLICT   OF   LAWS 


Br 
JOSEPH   HENRY   BEALE,  Jr. 

BUSSEY   PROFESSOR    OF    LAW   IN    HARVARD    UNIVERSITY 


CAMBRIDGE 
HARVARD    UNIVERSITY   PRESS 


T 
B3L,55c5j 

Copyright,  1907, 
By  Joseph  Henry  Beale,  Jb. 


A   SHORTER   SELECTION   OF 

CASES  ON  THE  CONFLICT  OF  LAWS. 


PART   I. 
JURISDICTION. 


CHAPTER   I. 
LAW. 


McDonald  v.  mallory. 

Court   of   Appeals,  New  York.     1879. 

[Reported    11   N.    Y.   546.] 

Rapallo,  J.^  For  the  purposes  of  this  appeal  the  wrongful  act  or 
neglect  causing  the  death  of  the  plaintiff's  intestate  must  be  treated  as 
having  been  committed  upon  the  high  seas.  The  complaint  does  not 
specifically  allege  that  the  disaster  was  caused  by  the  unlawful  or 
negligent  lading  of  the  petroleum  on  board  of  the  vessel  in  the  port 
of  New  York,  and  consequently  the  question  whether  that  fact,  if 
alleged,  would  establish  that  the  wrong  complained  of  was  committed 
within  the  territorial  bounds  of  this  State,  need  not  be  considered. 

We  shall  therefore  come  directly  to  the  principal  point  argued, 
which  is,  whether  under  the  statute  of  this  State,  which  gives  a  right 
of  action  for  causing  death  by  wrongful  act  or  neglect,  an  action  can 
be  maintained  for  thus  causing  a  death  on  the  high  seas,  on  board  of  a 
vessel  hailing  from  and  registered  in  a  port  within  this  State  and 
owned  by  citizens  thereof;  the  person  whose  death  was  so  caused 

^  The  opinion  only  is  given  ;  it  sufficiently  states  the  case,  —  Ed. 
1 


2  Mcdonald  v.  mallory.  [chap,  l 

being  also  a  citizen  of  this  State,  the  vessel  being  at  the  time 
employed  by  the  owners  in  their  own  business,  and  their  negligence 
being  alleged  to  have  caused  the  death. 

It  is  settled  by  the  adjudications  of  our  own  courts  that  the  right  of 
action  for  causing  death  b}'  negligence  exists  onl}'  by  virtue  of  the 
statute,  and  that  where  the  wrong  is  committed  within  a  foreign  State 
or  country,  no  action  therefor  can  be  maintained  here,  at  least  without 
proof  of  the  existence  of  a  similar  statute  in  the  place  where  the 
wrong  was  committed.  (Whitford  v.  Panama  R.  R.  Co.,  23  N,  Y. 
465  ;  Crowle}-  r.  Panama  R.  R.  Co.,  30  Barb.  99  ;  Beach  v.  Bay 
State  Steamboat  Co.,  30  id.  433  ;  Vandeventer  v.  N.  Y.  and  New 
Haven  R.  R.  Co.,  27  id.  244.)  These  decisions  rest  upon  the  plain 
ground  that  our  statute  can  have  no  operation  within  a  foreign  juris- 
diction, and  that  with  respect  to  positive  statute  law  it  cannot  be 
presumed  that  the  laws  of  other  States  or  countries  are  similar  to 
our  own.  (Opinion  of  Demo,  J.,  23  N.  Y.  467,  468,  471.)  The 
liability  of  a  person  for  his  acts  depends,  m  general,  upon  the  laws 
of  the  place  where  the  acts  were  committed,  and  although  a  civil  right 
of  action  acquired,  or  liability  incurred,  in  one  State  or  country  for  a 
personal  injury  may  be  enforced  in  another  to  which  the  parties  may 
remove  or  where  they  be  found,  yet  the  right  or  liability  must  exist 
under  the  laws  of  the  place  where  the  act  was  done.  Actions  for 
injuries  to  the  person  committed  abroad  are  sustained  without  proof 
in  the  first  instance  of  the  lex  loci,  upon  the  presumption  that  the  right 
to  compensation  for  such  injuries  is  recognized  by  the  laws  of  all 
countries.  But  this  presumption  cannot  apply  where  the  wrong  com- 
plained of  is  not  one  of  those  thus  universall}'  recognized  as  a  ground 
of  action,  but  is  one  for  which  redress  is  given  only  by  statute. 

Keeping  tliese  principles  in  view  it  is  clear  that  in  order  to  maintain 
this  action  it  is  necessary  to  establish  that  the  statute  law  in  question 
was  operative  on  board  of  the  vessel  upon  which  the  injury  was  cont- 
ra itted.  In  all  the  cases  which  have  been  decided,  the  place  of  the 
injury  was  actually  within  the  limits  of  a  foreign  territory,  subject  to 
its  ov>'n  laws,  and  where  there  could  be  no  claim  that  the  laws  of  this 
State  or  country  were  operative.  In  the  present  case  the  locus  in  quo 
was  not  within  tlie  actual  territorial  limits  of  any  State  or  nation,  nor 
was  it  sul)joct  to  the  laws  of  any  government,  unless  the  rule  which 
exists  from  necessity  is  applied,  tliat  every  vessel  on  the  high  seas  is 
constructively  a  part  of  the  territory  of  the  nation  to  which  she  l)elongs, 
and  its  laws  are  operative  on  board  of  her.  In  this  respect  the  case  is 
new. 

There  can  be  no  question  tliat  if  this  case  were  one  arising  under  the 
laws  of  tlie  United  States  the  rule  referred  to  would  apply,  and  acts 
done  on  lioanl  of  her  while  on  the  high  seas  would  be  governed  by 
those  laws.  The  question  now  presented  is  whether  in  respect  to 
matters  not  committed  by  the  Constitution  exclusively  to  the  Federal 
government  nor  legislated  upon  by  Congress,  but  regulated  entirely 


CHAP.  I.]  Mcdonald  v.  mallory.  3 

b}'  State  laws,  the  State  to  which  the  vessel  belongs  can  be  regarded 
as  the  sovereignty  whose  laws  follow  her  until  she  comes  within  the 
jurisdiction  of  some  other  government. 

This  precise  question  arose  in  the  case  of  Kell}'  v.  Crapo  (45  N.  Y. 
86  ;  and  16  Wall.  610),  though  in  a  different  form.  The  question 
there  was  whether  a  vessel  upon  the  high  seas  was  subject  to  the 
insolvent  laws  of  the  State  of  Massachusetts,  to  which  State  the  vessel 
belonged,  that  is,  where  she  was  registered  and  her  owner  resided, 
so  that  by  operation  of  those  laws,  and  without  any  act  of  the  owner, 
the  title  to  the  vessel  could  be  transferred  while  She  was  at  sea  by  a 
proceeding  in  i7ivittim,  to  an  official  assignee,  and  his  title  thus 
acquired  would  take  precedence  of  an  attachment  levied  upon  her 
ill  ihe  State  of  New  York  after  she  had  come  within  this  State. 

It  was  conceded  in  that  case,  in  this  court  as  well  as  in  the  Supreme 
Court  of  the  United  States,  that  unless  the  vessel  was  actually  or  con- 
etructively  within  the  jurisdiction  of  the  State  of  Massachusetts  her 
insolvent  law  could  not  operate  upon  her  so  as  to  defeat  a  title  acquired 
under  the  laws  of  the  State  within  whose  actual  territorial  jurisdiction 
ehe  afterwards  came.  (16  Wall.  622.)  But  in  support  of  the  title  of 
the  assignee  in  insolvency  it  was  urged  that  the  rule  before  referred  to 
applied  to  her,  and  that  while  at  sea  she  was  constructively  a  part  of 
the  territory  of  the  State  of  Massachusetts  and  subject  to  her  laws. 

This  court  held  that  the  rule  invoked  was  not  applicable  to  a  State, 
and  State  laws,  but  that  the  jurisdiction  referred  to  was  vested  in  the 
government  of  the  United  States,  and  that  the  national  territory  and 
its  laws  only  were  extended  b}-  legal  fiction  to  vessels  at  sea. 

This  decision  was  reversed  by  the  Supreme  Court  of  the  United 
States  (Crapo  v.  Kelh',  16  Wall.  610),  and  as  we  understand  the 
prevailing  opinion  in  that  court,  it  holds  that  the  relations  of  a  State 
to  the  Union  do  not  affect  its  status  as  a  sovereign,  except  with  respect 
to  those  powers  and  attributes  of  sovereignty'  which  have  b}-  the  Con- 
stitution been  transferred  to  the  government  of  the  United  States,  and 
that  in  all  other  respects  it  stands  as  if  it  were  an  independent  sov- 
ereign State,  unconnected  with  the  other  States  of  the  Union.  Upon 
this  principle  it  was  held  that  the  vessel  while  at  sea  Was  constructively 
part  of  the  territorv  of  the  State  of  Massachusetts  and  subject  to  its 
laws.  (16  Wall.  623,  624,  631-632.)  It  is  difficult  to  conceive  any 
other  principle  upon  which  that  conclusion  could  have  been  reached. 

In  respect  to  crimes  committed  on  the  high  seas,  the  power  to 
provide  for  their  punishment  has  been  delegated  to  the  Federal  govern- 
ment, and  for  that  reason  State  laws  cannot  be  applicable  to  them  ;  but 
I  cannot  escape  the  conclusion  that  under  the  principle  of  the  case  of 
Crapo  V.  Kelly  civil  rights  cf  action,  for  matters  occurring'  at  sea  on 
board  of  a  vessel  belonging  to  one  of  the  States  of  the  Union  must 
depend  upon  the  laws  of  that  State,  unless  the}'  arise  out  of  some 
matter  over  which  jurisdiction  has  been  vested  in  and  exercised  by 
the  government  of  the  United  States,  or  over  which  the  State  has 


4  Mcdonald  v.   mallory.         [chap,  l 

transferred  its  rights  of  sovereignty  to  the  United  States  ;  and  that  to 
this  extent  the  vessel  must  be  regarded  as  part  of  the  territory  of  the 
State,  while  in  respect  to  her  illations  with  foreign  governments, 
crimes  committed  on  board  of  her,  and  all  other  matters  over  which 
jurisdiction  is  vested  in  the  Federal  government,  she  must  be  regarded 
as  part  of  the  territory  of  the  United  States  and  subject  to  the  laws 
thereof. 

The  facts  alleged  in  the  complaint,  and  admitted  by  the  demurrer, 
present  a  strong  case  for  the  application  of  the  rule  that  the  laws  of 
the  State  to  which  the  vessel  belongs  follow  her  until  she  comes 
within  some  other  jurisdiction.  The  defendants,  by  whom  the  wrong 
is  allet^ed  to  have  been  committed,  were,  at  all  times  up  to  its  final 
consummation  by  the  death  of  the  plaintiff's  intestate,  citizens  and 
residents  of  this  State,  and  subject  to  its  laws,  and  the  deceased  was 
also  a  citizen  of  this  State.  The  death  was  caused  either  by  the 
illegal  and  negligent  act  done  in  this  State  of  lading  the  dangerous 
and  prohibited  article  on  board  the  vessel  and  sending  the  deceased  to 
sea  in  her  thus  exposed,  or  by  the  negligence  or  wrongful  acts  of  the 
defendants  committed  at  sea  through  their  agents.  The  complaint 
does  not  distinctly  specify  which,  but  it  must  have  been  one  or  the 
other.  If  the  latter,  then,  at  the  place  where  the  injury  was  consum- 
mated there  was  no  law  by  which  to  determine  whether  or  not  it 
rendered  the  defendants  liable  to  an  action,  unless  the  law  of  the 
State  to  which  the  vessel  belonged  followed  her.  In  the  present  case 
the  defendants  were,  at  the  time  of  the  wrongful  act  or  neglect,  and  of 
the  injury,  within  this  State  and  subject  to  its  laws,  and  none  of  the 
ol)jections,  suggested  in  the  various  cases  which  have  been  cited,  to 
subjecling  them  to  liability  under  the  statute,  for  acts  done  out  of  the 
territory  of  the  State,  can  appl}'.  There  can  be  no  double  liability,  as 
suggested  by  Denio,  J.,  in  23  N.  Y.  467,  471,  for  the  locus  in  quo 
was  not  subject  to  the  laws  of  any  other  country ;  nor  can  it  be  said 
that  the  deceased  or  his  representatives  were  under  the  protection  of 
the  laws  of  any  otlier  government,  as  is  said  in  some  of  the  other  cases 
cited.  It  is  a  case  where  no  confusion  or  injustice  can  result  from  the 
application  of  the  principle  declared  by  the  Supreme  Court,\that  the 
laws  of  the  State  as  well  as  of  the  United  States,  enacted  within  their 
respective  spheres,  follow  the  vessel  when  on  the  high  seas.\  In  the 
opinion  of  the  court  at  General  Term  in  this  case  it  is  expressly  con- 
ceded that  both  the  laws  of  the  State  and  the  nation  have  dominion  on 
a  vessel  on  the  high  seas,  but  the  demurrer  was  sustained  on  the 
ground  that  this  right  of  jurisdiction  has  not  been  exercised  by  the 
State  of  New  York,  and  its  statutes  are  restricted  in  their  operation 
to  the  actual  territorial  bounds  of  the  State. 

No  such  restriction  is  contained  in  the  statute  now  under  considera- 
tion. Its  language  is  broad  and  general  and  b}'  its  terms  it  operates 
in  all  places.  Its  operation  on  cases  arising  in  other  States  and 
countries  has  not  been  denied   by  reason  of  anything  contained  in 


CHAP.  I.]  Mcdonald  v.  mallory.  5 

the  act  itself  or  m  any  other  legislative  act,  but  on  general  principles 
of  law. 

But  the  court  rests  its  conclusion  upon  the  act  of  the  Legislature  of 
this  State  which  defines  its  boundaries  and  declares  that  the  sovereignty 
and  jurisdiction  of  this  State  extends  to  all  the  places  within  the 
boundaries  so  declared  (1  R.  S.  62,  65),  and  it  construes  that  act  as 
a  renunciation  or  abrogation  of  any  effect  which  might  on  general 
principles  of  law  be  given  to  its  statutes  on  board  of  vessels  on  the 
high  seas. 

We  are  unable  to  concur  in  this  view.  The  act  referred  to  was 
intended  to  define  simply  the  actual  territorial  bounds  of  the  State, 
and  the  declaration  that  its  sovereignty  and  jurisdiction  should  extend 
to  all  places  within  those  bounds  was  not  intended  to  nor  could  it 
operate  as  a  restriction  upon  subsequent  legislation,  nor  had  it  an}' 
reference  to  such  a  question  as  that  now  before  us.  Whatever  opera^ 
tion  our  laws  may  have  on  board  of  vessels  at  sea  depends  upon 
general  principles,  and  there  is  nothing  in  the  legislation  of  our  State 
which  places  it  in  this  respect  on  a  different  footing  from  any  other. 
Is  is  not  claimed  that  the  sovereignty  and  jurisdiction  of  this  State 
extend  to  its  vessels  when  at  sea,  as  they  do  to  places  within  its 
boundaries,  for  all  purposes,  such  as  service  of  process,  the  execu- 
tion of  judgments  and  the  like,  but  only  that  when  acts  done  at  sea 
become  the  subject  of  adjudication  here,  the  rights  and  liabilities  of 
parties  may  in  some  cases  be  determined  with  reference  to  our  statutes. 
There  is  nothing  inconsistent  with  this  in  the  act  referred  to,  or  in  the 
assertion  of  sovereignty  and  jurisdiction  for  all  purposes  over  places 
within  the  bounds  of  the  State. 

The  decision  of  this  court  in  Kelly  v.  Crapo  is  referred  to  as  the 
highest  evidence  that  this  State  never  intended  that  its  laws  should 
extend  to  vessels  on  the  high  seas.  That  decision  recognized  the 
general  principle  that  the  laws  of  a  nation  do  so  extend,  but  was  based 
upon  the  theory  that  the  relation  of  the  State  to  the  Union  was  such 
that  this  attribute  of  sovereignty  had  become  merged  in  the  powers 
granted  to  the  general  government.  But  the  judgment  of  the  Supreme 
Court  of  the  United  States  having  established  the  contrary  view,  and 
that  in  matters  not  the  subject  of  Federal  legislation,  the  laws  of  the 
State  follow  the  vessel,  thus  making  the  laws  of  the  State  and  of  the 
United  States,  in  their  respective  spheres,  together  constitute  the  law 
of  the  nation  to  which  the  vessel  belongs,  we  adopt  that  decision  as  the 
judgment  of  the  tribunal  to  whom  the  ultimate  determination  of  ques- 
tions of  that  nature  properly  belongs. 

There  is  nothing  in  the  nature  of  this  action  which  renders  it  exclu- 
sively the  subject  of  Federal  cognizance.  The  jurisdiction  of  the 
States  and  of  the  United  States  in  the  matter  of  personal  torts  com- 
mitted at  sea,  such  as  assaults  by  a  master  on  his  crew,  injuries  to 
passengers,  and  the  like,  are  concurrent,  though  remedies  by  proceed- 
ings in  rem  can  be  administered  only  by  the  Courts  of  Admiralty  of  the 


6  DOBREE   V.   NAPIER.  [CHAP.    I. 

United  States.  The  field  of  legislation  in  respect  to  cases  like  the 
present  one  has  not  been  occupied  b}'  the  general  government  and  is 
therefore  open  to  the  States.  (Steamboat  Co.  v.  Chase,  16  Wall. 
522,  530,  533.)  Indeed  the  United  States  Court  of  Admiralty  would 
have  no  jurisdiction  in  such  a  case  (Steamboat  Co.  v.  Chase,  16  Wall. 
522,  530,  533;  Sherlock  v.  Allen,  93  U.  S.  99),  and  there  is  no 
greater  objection  to  extending  the  operation  of  a  statute  of  this 
description  to  a  vessel  at  sea  than  there  was  to  giving  similar  opera- 
tion to  a  State  insolvent  law. 


DOBREE   V.    NAPIER. 
Court  of  Common  Pleas.     1836. 

[Reported  2  Bingham's  New  Cases,  781j. 

TiKDAL,  C.  J.^  The  plaintiffs  declare  in  this  action  against  the  two 
defendants  for  seizing  and  taking  a  steam  vessel  of  the  plaintiffs,  and 
converting  the  same  to  their  use. 

The  defendants  sever  in  their  pleading,  but  each  puts  upon  the 
record  substantially  the  same  justification,  to  which  the  answers  givea 
b\-  the  replication  are  the  same,  and  the  same  questions  of  law  are 
raised  thereon. 

It  will  be  sufficient,  therefore,  to  consider  the  case  as  it  is  raised 
upon  the  pleadings  with  respect  to  the  first-named  defendant,  Charles 
Napier. 

The  third  special  plea  of  the  defendant  Charles  Napier  alleges,  that 
as  a  servant  of  the  Queen  of  Portugal,  and  b}-  her  command,  he  seized 
and  took  the  steam  vessel  of  the  plaintiffs  as  lawful  prize,  and  that 
such  proceedings  were  thereupon  had,  according  to  the  laws  of  Portugal, 
in  a  court  of  law  in  the  kingdom  of  Portugal  of  competent  jurisdiction 
in  tliat  behalf,  that  afterwards,  in  and  by  the  said  court,  the  said  steam 
vessel  was  adjudged  to  have  been  justly  and  lawfully  taken,  and  was 
then  in  due  course  and  form  of  law  condemned  as  lawful  prize,  and  as 
forfeited  to  tlie  Queen  of  Portugal.  In  answer  to  this  plea,  the  plain- 
tiff in  his  replication  alleges  certain  facts,  which  bring  the  service  of 
the  defendant  Charles  Napier  under  the  Queen  of  Portugal,  upon  the 
occasion  in  question,  witliin  the  restrictions  of  the  statute  59  G.  3.  c. 
69.  s.  2.,  generally  known  by  the  name  of  the  Foreign  Enlistment  Act; 
and  to  this  replication  the  defendant  demurred. 

We  think  it  is  perfectly  clear,  that,  except  for  the  facts  introducea 
by  the  replication,  tlie  plea,  standing  alone  ;md  unanswered,  would  be 
a  conclusive  bar  to  the  plaintiff's  riglit  of  action.  The  sentence  of  a 
foreign  court  of  competent  jurisdiction,  condemning  a  neutral  vessel 
taken  in  war,  as  prize,  is  binding  and  conclusive  on  all  the  world  ;  and 

^  The  opinion  only  is  given  ;  it  sufficiently  states  the  case.  Part  of  the  opinion,  in- 
volving a  different  question,  is  omitted.  —  Ed. 


DKAP.   I.J  DOBREE    V.    NAPIER.  7 

no  English  court  of  law  can  call  in  question  the  propriet}-,  or  the 
grounds,  of  such  condemnation.  It  is  sufficient  to  refer  to  the  case 
of  Hughes  V.  Cornelius  and  others,  Sir  T.  Raym.  473,  as  a  decisive 
authority  on  that  point.  It  follows  that  after  the  sentence  of  the  Court 
of  Lisbon,  it  cannot  be  controverted  in  this,  or  an}'  other  English  court, 
that  the  steam  vessel  was  rightly  taken  by  the  Queen  of  Portugal  as 
prize,  and  that  all  the  property  of  the  plaintiffs  therein  became,  by 
such  capture  and  condemnation,  forfeited  to  the  Queen,  and  vested  in 
her. 

But  the  plaintiffs  contend  that  the  replication,  "by  the  facts  therein 
disclosed,  shows  that  the  service  of  the  defendant  Charles  Napier  under 
the  Queen  of  Portugal,  by  virtue  of  which  service  alone  he  justifles  the 
seizing  of  the  steam  vessel,  is  made  illegal  by  an  English  statute,  viz. 
the  statute  59  G.  3.  c.  69.,  and  that  such  illegality  of  the  service  pre- 
vents him  from  making  an}-  justification  under  the  Queen  of  Portugal, 
and  renders  him  liable  to  all  the  damages  which  the  plaintiffs  have  sus- 
tained b}'  reason  of  the  seizure.  And  whether  the  conclusion  which 
the  plaintiff's  draw  from  these  premises  is  the  just  conclusion  or  not, 
is  the  question  between  these  parties.  The  seizure  by  the  Queen  of 
Portugal  must  be  admitted  to  be  justifiable  ;  no  objection  can  be  taken 
against  the  forfeiture  of  the  propert}-  in  this  vessel  to  tlie  Queen,  under 
the  sentence  of  condemnation.  The  plaintiffs,  therefore,  in  contem- 
plation of  law,  have  sustained  no  legal  injur}'  by  reason  of  the  seizure. 
Again  no  one  can  dispute  the  right  of  the  Queen  of  Portugal,  to  appoint 
in  her  own  dominions,  the  defendant  or  any  other  person  she  may 
think  proper  to  select,  as  her  officer  or  servant,  to  seize  a  vessel  which 
is  afterwards  condemned  as  a  prize  ;  or  can  deny,  that  the  relation  of 
lord  and  servant,  de  facto,  subsists  between  the  Queen  and  the  defend- 
ant Napier.  For  the  Queen  of  Portugal  cannot  be  bound  to  take  any 
notice  of,  much  less  owe  any  obedience  to,  tlie  municipal  laws  of  this 
country.  Still,  however,  notwithstanding  the  loss  by  seizure  is  such, 
as  that  no  court  of  law  can  consider  it  an  injury,  or  give  any  redress 
for  it ;  and  that  the  service  and  employment  of  the  defendant  is  a  ser- 
vice and  employment  de  facto;  the  plaintiffs  contend  they  can  make 
the  servant  responsible  for  the  whole  loss,  only  by  reason  of  his  being 
obnoxious  to  punishment  in  this  country,  for  having  engaged  in  such 
service.  No  case  whatever  has  been  cited  which  goes  the  length  of 
this  proposition  ;  the  authorities  referred  to  establishing  only,  that 
where  an  act  prohibited  by  the  law  of  this  country  has  been  done,  the 
doer  of  such  illegal  act  cannot  claim  the  assistance  of  a  court  of  law  in 
this  country  to  enforce  such  act,  or  any  benefit  to  be  derived  from  it, 
or  any  contract  founded  upon  it.  To  the  full  extent  of  these  authorities, 
we  entirely  accede  ;  but  we  cannot  consider  the  law  to  be,  that  where  the 
act  of  the  principal  is  lawful  in  the  country  where  it  is  done,  and  the 
authority  under  which  such  act  is  done  is  complete,  binding,  and  un- 
questionable there,  the  servant  who  does  the  act  can  be  made  responsible 
in  the  courts  of  this  country  for  the  consequence  of  such  act,  to  the  same 


8  BLANKARD    V.    GAI.DY.  [CHAP.  I. 

extent  as  if  it  were  originall}'  unlawful,  merely  by  reason  of  a  personal 
disability  imposed  bj'  the  law  of  this  country  upon  him,  for  contracting 
such  engagement.  Such  a  construction  would  effect  an  unreasonable 
alteration  in  the  situation  and  rights  of  the  plaintiffs  and  the  defendant. 
The  plaintiffs  would,  without  any  merit  on  their  part,  recover  against 
the  servant  the  value  of  the  property  to  which  they  had  lost  all  claim 
and  title  by  law  against  the  prhicipal ;  and  the  defendant,  instead  of 
the  measure  of  punishment  intended  to  be  inflicted  by  the  statute  for 
the  transgression  of  the  law,  might  be  made  liable  to  damages  of  an 
incalculable  amount.  Again,  the  only  ground  upon  which  the  authority 
of  the  servant  is  traversable  at  all  in  an  action  of  trespass,  is  no  more 
than  this  ;  to  protect  the  person  or  property  of  a  party  from  the  offi- 
cious and  wanton  interference  of  a  stranger,  where  the  principal  might 
have  been  willing  to  waive  his, rights.  It  is  obvious  that  the  full 
benefit  of  this  principle  is  secured  to  the  plaintiffs  by  allowing  a  traverse 
of  the  authority  de  facto,  without  permitting  them  to  impeach  it  by  a 
legal  objection  to  its  validity,  in  another  and  foreign  country.  And 
we  think  there  is  no  material  difference  between  the  third  and  the  first 
and  second  special  pleas  on  this  record.  For  as  we  hold  that  the  au- 
thority- of  the  Queen  of  Portugal  to  be  a  justification  of  the  seizure  "  as 
prize,"  there  is  as  little  doubt  but  that  she  might  direct  a  neutral  ves- 
sel to  be  seized  when  in  the  act  of  breaking  a  blockade  b}'  her  estab- 
lished, which  is  the  substance  of  the  first  special  plea,  or  of  supplying 
warlike  stores  to  her  enemies,  which  is  the  substance  of  the  second. 
We  therefore  give  judgment  on  the  first  three  special  pleas,  for  the 
defendants. 

Judgment  for  Defendants. 


BLANKARD  v.  GALDY. 

King's  Bench.     1693. 
{^Reported  2  Salkeld,  411.3 


In  debt  on  a  bond,  the  defendant  prayed  oyer  of  the  condition,  and 
pleaded  the  statute  E.  6.  against  buying  oflfices  concerning  the  admin- 
istration of  justice  ;  and  averred.  That  this  bond  was  given  for  the 
purchase  of  the  ofllcc  of  provost-marshal  in  Jamaica,  and  that  it  con- 
cerned the  administration  of  justice,  and  that  Jamaica  is  part  of  the 
revenue  and  possessions  of  the  Crown  of  England  :  The  plaintiff  replied, 


CHAP.  I.]  BLANKARD   V.    GALDY.  9 

that  Jamaica  is  an  Island  beyond  the  seas,  which  was  conquered  from 
the  Indians  and  Spaniards  in  Queen  Elizabetli's  time,  and  the  inhabit- 
ant? are  governed  by  their  own  laws,  and  not  by  the  laws  of  England : 
The  defendant  rejoined,  That  before  such  conquest  they  were  governed 
by  their  own  laws  ;  but  since  that,  b}-  the  laws  of  England  :  Shower 
argued  for  the  plaintiff,  that,  on  a  judgment  in  Jamaica,  no  writ  of 
error  lies  here,  but  only  an  appeal  to  the  Council ;  and  as  they  are 
not  represented  in  our  Parliament,  so  they  are  not  bound  by  our  stat- 
utes, unless  specially  named.  Vide  And.  115.  Pemberton  contra 
argued,  that  by  the  conquest  of  a  nation,  its  liberties,  rights,  and  prop- 
erties are  quite  lost ;  that  by  consequence  their  laws  are  lost  too,  for 
the  law  is  but  the  rule  and  guard  of  the  other  ;  those  that  conquer,  can- 
not by  their  victory  lose  their  laws,  and  become  subject  to  others. 
Vide  Vaugh.  405.  That  error  lies  here  upon  a  judgment  in  Jamaica, 
which  could  not  be  if  the}'  were  not  under  the  same  law.  Et per  Holt, 
a  J.  &  Cur., 

First,  in  case  of  an  uninhabited  country  newlj'  found  out  b}'  English 
subjects,  all  laws  in  force  in  England  are  in  force  there  ;  so  it  seemed 
to  be  agreed. 

Secondl}-,  Jamaica  being  conquered,  and  not  pleaded  to  be  parcel  of 
the  kingdom  of  England,  but  part  of  the  possessions  and  revenue  of 
the  Crown  of  England,  the  laws  of  England  did  not  take  place  there, 
until  declared  so  by  the  conqueror  or  his  successors.  The  Isle  of  Man 
and  Ireland  are  part  of  the  possessions  of  the  Crown  of  England  ;  yet 
retain  their  ancient  laws  :  That  in  Davis  36.  it  is  not  pretended,  that 
the  custom  of  tanistry  was  determined  by  the  conquest  of  Ireland,  but 
by  the  new  settlement  made  there  after  the  conquest :  That  it  was  im- 
possible the  laws  of  this  nation,  by  mere  conquest,  without  more, 
should  take  place  in  a  conquered  country  ;  because,  for  a  time,  there 
must  want  officers,  without  which  our  laws  can  have  no  force  :  That  if 
our  law  did  take  place,  yet  they  in  Jamaica  having  power  to  make  new 
laws,  our  general  laws  may  be  altered  by  theirs  in  particulars ;  also 
they  held,  that  in  the  case  of  an  infidel  country,  their  laws  by  conquest 
do  not  entirely  cease,  but  onlj-  such  as  are  against  the  law  of  God  ;  and 
that  in  such  cases  where  the  laws  are  rejected  or  silent,  the  conquered 
country  shall  be  governed  according  to  the  rule  of  natural  equity. 

Judgiaent  pro  quer.^ 

1  Another  report  of  the  same  case  may  be  found  in  4  Mod.  222.  In  thnt  case  the 
Court  is  reported  to  have  said  :  "  And  therefore  it  was  held,  that  Jamaica  was  not  gov- 
erned by  the  laws  of  England  after  the  conquest  thereof,  till  new  laws  were  made  :  for 
they  had  neither  sheriff  or  counties;  they  were  only  an  assembly  of  people  which  are 
not  bound  by  our  laws,  unless  particularly  mentioned.  In  Barbadoes  all  freeholds  are 
subject  to  debts,  and  are  esteemed  as  chattels  till  the  creditors  are  satisfied,  and  then 
the  lands  descend  to  an  heir ;  but  the  law  is  otherwise  here  ;  which  shows  that  though 
that  island  is  parcel  of  the  possessions  of  England,  yet  it  is  not  governed  by  the  laws 
made  here,  but  by  their  own  particular  laws  and  customs." 

Ace.  Earl  Derby's  Case,  2  And.  116  ;  Mem-  2  P.  Wms.  75.  See  Cross  v.  HarrisoDi 
16  How.  161;  Airhart  v.  Massieu,  98  U.  S.  491.  —Ed. 


10  ~^~<-^     ^^  SWIFT   V.    TYSON.  [CHAP.  I. 


SWIFT  V.  TYSON. 
Supreme  Court  of  the  United  States.    1842. 

[^Reported  16  Peters  Reports,  1.] 

Mr.  Justice  Story  delivered  the  opinion  of  the  court.  ^ 

This  cause  comes  before  us  from  the  Circuit  Court  of  the  Southern 
District  of  New  York,  upon  a  certificate  of  division  of  the  judges  of 
that  court. 

The  action  was  brought  by  the  plaintiff,  Swift,  as  endorsee,  against 
the  defendant,  Tyson,  as  acceptor,  upon  a  bill  of  exchange  dated  at 
Portland,  Maine,  on  the  first  day  of  Ma}',  1836,  for  the  sum  of  one 
thousand  five  hundred  and  forty  dollars,  thirty  cents,  payable  six 
months  after  date  and  grace,  drawn  by  one  Nathaniel  Norton  and  one 
Jairus  S.  Keith  upon  and  accepted  by  Tyson,  at  the  citj-  of  New  York, 
in  favor  of  the  order  of  Nathaniel  Norton,  and  by  Norton  endorsed  to 
the  plaintiff.     The  bill  was  dishonored  at  maturity.  .   .  . 

In  the  present  case,  the  plaintiff  is  a  bona  fide  holder  (without 
notice)  for  what  the  law  deems  a  good  and  valid  consideration,  that  is, 
for  a  pre-existing  debt ;  and  the  only  real  question  in  the  cause  is, 
whether,  under  the  circumstances  of  the  present  case,  such  a  pre-exist- 
ing debt  constitutes  a  valuable  consideration  in  the  sense  of  the  general 
rule  applicable  to  negotiable  instruments.  We  say,  under  the  circum- 
stances of  the  present  case,  for  the  acceptance  having  been  made  in 
New  York,  the  argument  on  behalf  of  the  defendant  is,  that  the  con- 
tract is  to  be  treated  as  a  New  York  contract,  and  therefore  to  be  gov- 
erned by  the  laws  of  New  York,  as  expounded  by  its  courts,  as  well 
upon  general  principles  as  by  the  express  provisions  of  the  thirty- 
fourth  section  of  the  Judiciary  Act  of  1789,  ch.  20.  And  then  it  is 
further  contended,  that  by  the  law  of  New  York,  as  thus  expounded 
by  its  courts,  a  pre-existing  debt  does  not  constitute,  in  the  sense  of 
the  general  rule,  a  valuable  consideration  applicable  to  negotiable  in- 
struments.  .   .  . 

To  say  the  least  of  it,  it  admits  of  serious  doubt,  whether  any  doc- 
trine upon  this  question  can  at  the  present  time  be  treated  as  finally 
cstablislied  ;  and  it  is  certain  that  the  Court  of  Errors  have  not  pro- 
nounced any  positive  opinion  upon  it. 

But,  admitting  the  doctrine  to  be  fully  settled  in  New  York,  it 
remains  to  be  considered  whether  it  is  obligatory  upon  this  comt,  if  it 
differs  from  the  principles  established  in  the  general  commercial  law. 
It  is  observable  that  the  courts  of  New  York  do  not  found  their  deci- 
sions upon  this  point  upon  an}'  local  statute,  or  positive,  fixed,  or 
ancient  local  usage  :  but  the}'  deduce  the  doctrine  from  the  general 
principles  of  commercial  law.  It  is,  however,  contended,  that  the 
thirty-fourth  section  of  the  Judiciary  Act  of  1789,  ch.  20,  furnishes  a  rule 

^  Part  of  the  oiunion  is  omitted.  —  Ed. 


CHAP.  I.]  SWIFT   V.    TYSON.  H 

obligatory  upon  this  court  to  follow  the  decisions  of  the  State  tribunals 
in  all  cases  to  which  they  apply.     That  section  provides  "that  the  _ 
laws  of  the  several  States,  except  where  the  Constitution,  treaties,_or 
statutes  of  the  United  States  shall  otherwise  require  or  provide,  shall 
be  regarded  as  rules  of  decision  in  trials  at  common  law  in  the  courtj^ 
of  the  United  States,  in  cases  where  they  apply/'     In  order  to  main- 
tain the  argument,  it  is  essential,  therefore,   to  hold,   that  the  word 
♦'  laws,"  in  this  section,  includes  within  the  scope  of  its  meaning  the 
decisions  of  the  local  tribunals.     In  the  ordinary  use  of  language  it 
will  hardly  be  contended  that  the  decisions  of  courts  constitute  laws. 
They  are,  at  most,  only  evidence  of  what  the  laws  are  ;  and  are  not 
of  themselves  laws.     They  are  often  re-examined,  reversed,  and  quali- 
fied by  the  courts  themselves,  whenever  they  are  found  to  be  either 
defective,  or  ill-founded,  or  otherwise  incorrect.     Tlie  laws  of  a  State 
are  more  usually  understood  to  mean  the  rules  and  enactments  promul- 
gated  by  the  legislative   authority   thereof,   or  long  established  local 
customs  having  the  force  of  laws.     In  all  the  various  cases  which  have 
hitherto  come  before  us  for  decision,  this  court  have  uniformly  sup- 
posed  that  the  true  interpretation  of  the  thirty-fourth  section  limited 
its  application  to  State  laws  strictly  local,  that  is  to  say,  to  the  positive 
statutes  of  the  State,  and  the  construction  thereof  adopted  by  the  local 
tribunals,  and  to  rights  and  titles  to  things  having  a  permanent  locality, 
such  as  the  rights  and  titles  to  real  estate,  and  other  matters  immovable 
and  intraterritorial  in  their  nature  and  character.     It  never  has  been 
supposed  by  us  that  the  section  did  apply,  or  was  designed  to  apply, 
to  questions  of  a  more  general  nature,  not  at  all  dependent  upon  local 
statutes  or  local  usages  of  a  fixed  and  permanent  operation,  as,  for 
example,  to  the  construction  of  ordinary  contracts  or  other  written 
instruments,  and  especially  to  questions  of  general  commercial  law, 
where  the  State  tribunals  are  called  upon  to  perform  the  like  functions 
as   ourselves,  that   is,   to   ascertain    upon  general  reasoning  and  legal 
analogies,  what  is  tl'ic  trilff  exposition  of  the  contract  or  instrument,  or 
•what  is  the  just  rule  furnished  by  the  principles  of  commercial  law  to 
govern  the  case.     And  we  have  not  now  the  slightest  diflficulty  in  hold- 
ing, that  this  section,  upon  its  true  intendment  and  construction,  is 
strictly  limited  to  local  statutes  and  local  usages  of  the  character  before 
stated,  and  does  not  extend  to  contracts  and  other  instruments  of  a 
commercial  nature,  the  true  interpretation  and  effect  whereof  are  to  be 
sought,  not  in  the  decisions  of  the  local  tribunals,  but  in  the  general 
principles  and  doctrines  of  commercial  jurisprudence.    Undoubtedly,  the 
decisions  of  the  local  tribunals  upon  such  subjects  are  entitled  to,  and 
will  receive,  the  most  deliberate  attention  and  respect  of  this  court ;  but 
they  cannot  furnish  positive  rules,  or  conclusive  authority,  by  which  our 
own  judgments  are  to  be  bound  up  and  governed.     The  law  respecting 
negotiable  instruments  may  be  truly  declared  in  the  language  of  Cicero, 
adopted  by  Lord  Mansfield  in  Luke  v.  Lyde,  2  Burr.   R.  883,  887,  to 
be  in  a  great  measure,  not  the  law  of  a  single  country  only,  but  of  the 


12  WESTERN   UNION   TEL.    CO.    V.   CALL   PUBLISHING   CO.     [CHAP.  L 

commercial  world.  Non  erit  alia  lex  Romse,  alia  Athenis,  aha  nunc, 
alia  posthac,  sed  et  apud  omnes  gentes,  et  orani  tempore,  una  eadem- 
quc  lex  obtenebit. 

It  becomes  necessary  for  us,  therefore,  upon  the  present  occasion, 
to  express  our  own  opinion  of  the  true  result  of  the  commercial  law 
upon  the  question  now  before  us.  And  we  have  no  hesitation  in  say- 
ing, that  a  pre-existing  debt  does  constitute  a  valuable  consideration  in 
the  sense  of  the  general  rule  already  stated,  as  applicable  to  negotiable 
instruments.  .  .  . 


WESTERN  UNION  TELEGRAPH  CO.  v.  CALL 
PUBLISHING   CO. 

Supreme  Court  of  tue  United  States.     1901. 

[Reported  181  United  States,  92.] 

This  was  an  action  commenced  on  April  29,  1891,  in  the  District 
Court  of  Lancaster  County,  Nebraska,  by  the  Call  Publishing  Com- 
pauv,  to  recover  sums  alleged  to  have  been  wrongfully  charged  and 
collected  from  it  by  the  defendant,  now  plaintiff  in  error,  for  tele- 
graphic services  rendered.  According  to  the  petition  the  plaintiff 
had  been  engaged  in  publishing  a  daily  newspaper  in  Lincoln,  Neb- 
raska, called  The  Lincoln  Daily  Call.  The  Nebraska  State  Journal 
was  another  newspaper  published  at  the  same  time  in  the  same  city, 
by  the  State  Journal  Company.  Each  of  these  papers  received  Asso- 
ciated Press  despatches  over  the  lines  of  the  defendant.  The  petition 
alleged  : 

"4th.  That  during  all  of  said  period  the  defendant  wrongfully  and 
unjustly  discriminated  in  favor  of  the  said  State  Journal  Company  and 
against  this  plaintiff,  and  gave  to  the  State  Journal  Company  an  undue 
advantage,  in  this:  tliat  while  tiie  defendant  demanded,  charged,  and 
collected  of  and  from  the  plaintiff  for  the  services  aforesaid  seventy- 
five  dollars  per  month  for  such  despatches,  amounting  to  1500  words 
or  less  daily,  or  at  the  rate  of  not  less  than  five  dollars  per  100  words 
daily  per  month,  it  charged  and  collected  from  the  said  State  Journal 
Com[)any  for  the  same,  like,  and  contemporaneous  services  only  the 
sum  of  S1..")0  per  100  words  dailv  per  month. 

"  Plaintiff  alleges  that  the  sum  so  demanded,  charged,  collected,  and 
received  by  the  said  defendant  for  the  services  so  rendered  the  plaintiff, 
as  aforesaid,  was  excessive  and  unjust  to  the  extent  of  the  amount  of 
the  excess  over  the  rate  charged  the  said  State  Journal  Company  for 
the  same  services,  which  excess  was  three  dollars  and  fifty  cents  per 
one  hundred  words  daily  per  month,  and  to  that  extent  it  was  an  un- 
just and  wrongful  discrimination  against  the  plaintiff  and  in  favor  ol 
the  State  Journal  Company. 


CHAP.  I.]     WESTERN    UNION   TEL.    CO.    V.    CALL    PUBLISHING   CO.  13 

"  That  plaintiflf  was  at  all  times  and  is  now  compelled  to  pay  said 
excessive  charges  to  the  defendant  for  said  services  or  to  do  without 
the  same  ;  that  plaintili  could  not  dispense  with  such  despatches  with- 
out very  serious  injur\'  to  its  business." 

The  telegraph  compan3''s  amended  answer  denied  an}'  unjust  dis- 
crimination ;  denied  that  the  sums  charged  to  the  plaintiff  were  unjust 
or  excessive,  and  alleged  that  such  sums  were  no  more  than  a  fair  and 
reasonable  charge  and  compensation  therefor,  and  similar  to  charges 
made  upon  other  persons  and  corporations  at  Lincoln  and  elsewhere 
for  like  services.  The  defendant  further  claimed  that  it  was  a  cor- 
poration, engaged  in  interstate  commerce;  that  it  had  accepted  the 
provisions  of  the  act  of  Congress  entitled  "  An  act  to  aid  in  the  con- 
struction of  telegraph  lines  and  to  secure  to  the  government  the  use  of 
the  same  for  postal  and  other  purposes,"  approved  July  24,  1866  ;  that 
it  had  constructed  its  lines  under  the  authority  of  its  charter  and  that 
act,  and  denied  the  jurisdiction  of  the  courts  of  Nebraska  over  this 
controversy.  A  trial  was  had,  resulting  in  a  verdict  and  judgment  for 
the  plaintiff,  which  judgment  was  reversed  by  the  Supreme  Court  of 
the  State.  44  Neb.  326.  A  second  trial  in  the  District  Court  resulted 
in  a  verdict  and  judgment  for  the  plaintiff,  which  was  affirmed  by  the 
Supreme  Court  of  the  State  (58  Neb.  192),  and  thereupon  the  tele- 
graph company  sued  out  this  writ  of  error. 

Brewer,  J.^  The  contention  of  the  telegraph  company  is  substantially 
that  the  services  which  it  rendered  to  the  publishing  company  were  a 
matter  of  interstate  commerce  ;  that  Congress  has  sole  jurisdiction  over 
such  matters,  and  can  alone  prescribe  rules  and  regulations  therefor  ; 
that  it  had  not  at  the  time  these  services  were  rendered  prescribed  anv 
regulations  concerning  them  ;  that  there  is  no  national  common  law, 
and  that  whatever  ma}-  be  the  statute  or  common  law  of  Nebraska  is 
■wholly  immaterial ;  and  that  therefore,  there  being  no  controlling 
statute  or  common  law,  the  State  court  erred  in  holding  the  telegraph 
companv  liable  for  any  discrimination  in  its  charges  between  the 
plaintiff  and  the  Journal  company.  In  the  brief  of  counsel  it  is  said  : 
"The  contention  was  consistently  and  continuously  made  upon  the 
trial  hv  the  telegraph  companv  that,  as  to  the  State  law,  it  could  not 
apply  for  the  reasons  already  given,  and  that,  in  the  absence  of  a 
statute  by  Congress  declaring  a  rule  as  to  interstate  traffic  by  tlie  tele- 
graph company,  such  as  was  appealed  to  by  the  publishing  company, 
there  was  no  law  upon  the  subject."  V.The  logical  result  of  this  con- 
tention is  that  persons  dealing  with  common  carriers  engaged  in  inter- 
state commerce  and  in  respect  to  such  commerce  are  absolutely  at  the 
mere}-  of  the  carriers.  \It  is  true  counsel  do  not  insist  that  the  telegraph 
company  or  any  other  company  engaged  in  interstate  commerce  may 
charge  or  contract  for  unreasonable  rates,  but  they  do  not  say  that 
they  may  not,  and  if  there  be  neither  statute  nor  common  law  control- 

1  Part  of  the  opinion,  in  which  the  charge  of  the  court  at  the  trial  was  given,  is 
omitted.  —  Ed. 


14  WESTER>J   UNION    TEL.    CO.    V.   CALL    PUBLISHING   CO.     [CHAP.  L 

ling  the  action  of  interstate  carriers,  there  is  nothing  to  limit  their 
oblii^ation  in  respect  to  the  matter  of  reasonableness.  We  should  be 
verv  loatli  to  hold  that  in  the  absence  of  congressional  action  there  are 
no  restrictions  on  the  power  of  interstate  carriers  to  charge  for  their 
services  ;  and  if  there  be  no  law  to  restrain,  tlie  necessar}-  result  ia 
that  there  is  no  limit  to  the  charges  they  may  make  and  enforce.  .  .  . 
Common  carriers,  whether  engaged  in  interstate  commerce  or  in 
that  wholl}-  within  the  State,  are  performing  a  public  service.  They 
are  endowed  by  the  State  with  some  of  its  sovereign  powers,  such  as 
the  right  of  eminent  domain,  and  so  endowed  by  reason  of  the  public 
service  they  render.  As  a  consequence  of  this  all  individuals  have 
equal  rights  both  in  respect  to  service  and  charges.  Of  course,  such 
equality  of  riglit  does  not  prevent  differences  in  the  modes  and  kinds 
of  service  and  different  charges  based  thereon.  There  is  no  cast-iron 
line  of  uniformity  which  prevents  a  charge  from  being  above  or  below 
a  particular  sum,  or  requires  that  the  service  shall  be  exactly  along 
the  same  lines.  But  that  principle  of  equalit}-  does  forbid  any  differ- 
ence in  charge  which  is  not  based  upon  difference  in  service,  and  even 
when  based  upon  difference  of  service,  must  have  some  reasonable  re- 
lation to  the  amount  of  difference,  and  cannot  be  so  great  as  to  produce 
an  unjust  discrimination.  To  affirm  that  a  condition  of  things  exists 
under  which  common  carriers  anywhere  in  the  country,  engaged  in  an}' 
form  of  transportation,  are  relieved  from  tlie  burdens  of  these  obliga- 
tions, is  a  proposition  which,  to  say  the  least,  is  startling.  And  yet, 
as  we  have  seen,  that  is  precisely  the  contention  of  the  telegraph  com- 
pany, nt  contends  that  there  is  no  federal  common  law,  and  that 
such  has  been  the  ruling  of  this  court ;  there  was  no  federal  statute 
law  at  the  time  applicable  to  this  case,  and  as  the  matter  is  interstate 
commerce,  wholly  removed  from  State  jurisdiction,  the  conclusion  is 
reached  that  there  is  no  controlling  law,  and  the  question  of  rates  is 
left  entirel}'  to  the  judgment  or  whim  of  the  telegraph  company.  ^ 

This  court  has  often  held  that  the  full  control  over  interstate  com- 
merce is  vested  in  Congress,  and  that  it  cannot  be  regulated  b}-  the 
States.  It  has  also  held  that  the  inaction  of  Congress  is  indicative  of 
its  intention  that  such  interstate  commerce  shall  be  free,  and  many 
cases  are  cited  by  counsel  for  the  telegraph  company  in  which  these 
propositions  have  been  announced.  Reference  is  also  made  to  opinions 
in  wliicli  it  has  been  stated  that  there  is  no  federal  common  law  differ- 
ent and  distinct  from  tiic  common  law  existing  in  the  several  States. 
Thus,  in  Smith  v.  Alabama,  124  U.  S.  4G5,  478,  it  was  said  by  Mr. 
Justice  Matthews,  speaking  for  the  court: 

"  There  is  no  common  law  of  the  United  States  in  the  sense  of  a 
national  customary  law  distinct  from  the  common  law  of  England  as 
adopted  by  the  several  States,  each  for  itself,  applied  as  its  local  law, 
and  subject  to  such  alteration  as  may  be  [)rovided  by  its  own  statutes. 
Wlieaton  v.  Peters,  8  Pet.  591-.  A  determination  in  a  given  case  of 
what  thnt  law  is  may  be  different  in  a  court  of  the  United  States  from 


CHAP.  I.]      WESTERN    UNION    TEL.    CO.    V.    CALL    PUBLISHING    CO.  15 

that  which  prevails  in  the  judicial  tribunals  of  a  particular  State.  This, 
arises  from  the  circumstance  that  courts  of  the  United  States,  in  cases 
witliin  their  jurisdiction  where  the}'  are  called  upon  to  administer  the 
law  of  the  State  in  which  they  sit,  or  by  which  the  transaction  is 
governed,  exercise  an  independent,  though  concurrent,  jurisdiction, 
and  are  required  to  ascertain  and  declare  the  law  according  to  their 
own  judgment.  This  is  illustrated  by  the  case  of  Railroad  Co.  v. 
Lockwood,  17  Wall.  357,  where  the  common  law  prevailing  in  the 
State  of  New  York  in  reference  to  the  liability  of  common  carriers  for 
negligence  received  a  different  interpretation  from  that  placed  upon  it 
by  the  judicial  tribunals  of  the  State;  but  the  law  as  applied  is  none 
the  less  the  law  of  that  State,"  p.  478. 

Properl}'  understood,  no  exceptions  can  be  taken  to  declarations  of 
this  kind.  There  is  no  body  of  federal  common  law  separate  and  dis- 
tinct from  the  common  law  existing  in  the  several  States  in  the  sense 
that  there  is  a  body  of  statute  law  enacted  by  Congress  separate  and 
distinct  from  the  body  of  statute  law  enacted  b}-  the  several  States. 
But  it  is  an  entirely  different  thing  to  hold  that  there  is  no  common 
law  in  force  generalh'  throughout  the  United  States,  and  that  the 
countless  multitude  of  interstate  commercial  transactions  are  subject 
to  no  rules  and  burdened  by  no  restrictions  other  than  those  expressed 
in  the  statutes  of  Congress. 

What  is  the  (common  law?  According  to  Kent:  "  The  common  law 
includes  those  principles,  usages,  and  rules  of  action  applicable  to  the 
government  and  securit}'  of  person  and  propert}'  which  do  not  rest  for 
their  authoritj-  upon  any  express  and  positive  declaration  of  the  will  of 
the  legislature."  1  Kent,  471.  As  Blackstone  says  :  '' Whence  it  is 
that  in  our  law  the  goodness  of  a  custom  depends  upon  its  having  been 
used  time  out  of  mind  ;  or,  in  the  solemnity  of  our  legal  phrase,  time 
whereof  the  naemory  of  man  runneth  not  to  the  contrary.  This  it  is 
•that  gives  it  its  weight  and  authorit}' ;  and  of  this  nature  are  the 
maxims  and  customs  which  compose  the  common  law,  or  lex  non 
scripta,  of  this  kingdom.  This  unwritten,  or  common,  law,  is  properly 
distinguishable  into  three  kinds  :  1.  General  customs  ;  which  are  the 
universal  rule  of  the  whole  kingdom,  and  form  the  common  law,  in  its 
stricter  and  more  usual  signification."  1  Blackstone,  67.  In  Black's 
Law  Dictionar}',  page  232,  it  is  thus  defined  :  ' '  As  distinguished  from 
law  created  by  the  enactment  of  legislatures,  the  common  law  comprises 
the  body  of  those  principles  and  rules  of  action  relating  to  the  govern- 
ment and  security  of  persons  and  propertj-,  which  derive  their  authoritj^ 
solely  from  usages  and  customs  of  immemorial  antiquity,  or  from  the 
judgments  and  decrees  of  the  courts  recognizing,  affirming,  and  enforc- 
ing such  usages  and  customs ;  and,  in  this  sense,  pai'ticularly  the 
ancient  unwritten  law  of  England." 

Can  it  be  that  the  great  multitude  of  interstate  commercial  trans- 
actions are  freed  from  the  burdens  created  by  the  common  law,  as  so 
defined,  and  are  subject  to  no  rule  except  that  to  be  found  in  the 


16  WESTERN    UNION    TEL.    CO.    V.    CALL    PUBLISHING    CO.      [CHAP.  L 

statutes  of  Congress  ?  We  are  clearl}'  of  opinion  that  this  cannot  be 
so,  andCthat  the  principles  of  the  common  law  are  operative  upon  all 
interstate  commercial  transactions  except  so  far  as  they  are  modified 
bv  congressional  enactment.  ) 

But  this  question  is  not  a  new  one  in  this  court.  In  Interstate 
Commerce  Commission  v.  Baltimore  &  Ohio  Railroad,  145  U.  S.  263, 
275,  a  case  which  involved  interstate  commerce,  it  was  said  by  Mr. 
Justice  Brown,  speaking  for  the  court : 

"Prior  to  the  enactment  of  the  act  of  February  4,  1887,  to  regulate 
commerce,  commonly  known  as  the  interstate  commerce  act,  24  Stat. 
379,  c.  104,  railway  traffic  in  this  country  was  regulated  by  the  princi- 
ples of  common  law  applicable  to  common  carriers.'' 

In  Bank  of  Kentucky  v.  Adams  Express  Co.,  and  Planters'  Bank  v. 
Express  Co. ,  93  U.  S.  174,  177,  the  express  companies  received  at 
New  Orleans  certain  packages  for  delivery  at  Louisville.  These  were 
interstate  shipments.  In  the  course  of  transit  the  packages  were 
destroyed  by  fire,  and  actions  were  brought  to  recover  the  value 
thereof.  The  companies  defended  on  the  ground  of  an  exemption 
from  liability  created  by  the  contracts  under  which  they  transported 
the  packages.  Mr.  Justice  Strong,  delivering  the  opinion  of  the  court 
after  describing  the  business  in  which  the  companies  were  engaged, 
said  : 

''Such  being  the  business  and  occupation  of  the  defendants,  they 
are  to  be  regarded  as  common  carriers,  and,  in  the  absence  of  stipula- 
tions to  the  contrary-,  subject  to  all  the  legal  responsibilities  of  such 
carriers." 

And  then  proceeded  to  show  that  they  could  not  avail  themselves  of 
the  exemption  claimed  by  virtue  of  the  clauses  in  the  contract.  The 
whole  argument  of  the  opinion  proceeds  upon  the  assumption  that  the 
common-law  rule  in  respect  to  common  carriers  controlled. 

Reference  may  also  be  made  to  the  elaborate  opinion  of  District 
Judge  Shiras,  holding  the  Circuit  Court  in  the  Northern  District  of 
Iowa,  in  Murray  /'.  Chicago  &  Northwestern  Railway,  62  Fed.  Rep.  24, 
in  which  is  collated  a  number  of  extracts  from  opinions  of  this  court, 
all  tending  to  show  recognition  of  a  general  common  law  existing 
throughout  tlie  United  States,  not,  it  is  true,  as  a  body  of  law  distinct 
from  the  common  law  enforced  in  the  States,  but  as  containing  the 
general  rules  and  principles  by  which  all  transactions  are  controlled, 
except  so  far  as  those  rules  and  principles  are  set  aside  b}-  express 
statute.  It  would  serve  no  good  purpose  to  here  repeat  those  quota- 
tions ;  it  is  enough  to  refer  to  the  opinion  in  which  the}'  are  collated. 

It  is  further  insisted  that  even  if  there  be  a  law  which  controls  there 
is  no  evidence  of  discrimination  such  as  would  entitle  the  plaintiff  to 
the  verdict  which  it  obtained.  But  there  was  testimon}'  tending  to 
show  the  conditions  under  which  the  services  were  rendered  to  the  two 
publishing  companies,  and  it  was  a  question  of  fact  whether,  upon  the 
differences   thus  shown,   there  was    an    unjust    discrimination.     And 


CHAP.  I.]  »  KLINE    V.    BAKER.  17 

questions  of  fact,  as  has  been  repeatedly  held,  when  once  settled  in 
the  courts  of  a  State,  are  not  subject  to  review  in  this  court.  Dower 
V.  Richards,  151  U.  S.  658;  Egan  v.  Hart,  165  U.  S.  188;  Chicago, 
Burlington,  etc.  Railroad  v.  Chicago,  166  U.  S.  226-242  ;  Hedrick  v. 
Atchison,  Topeka  &  Santa  Fe  Railroad,  167  U.  S.  673,  677;  Gard- 
ner V.  Bonestell,  180  U.  S.  362. 

These  are  the  only  questions  of  a  federal  nature  which  are  pre- 
sented b\-  the  record,  and  finding  no  error  in  them  the  judgment  of 
the  Supreme  Court  of  Nebraska  is 

Affirmed. 


KLINE  V.  BAKER, 
Supreme  Judicial  Court  of  Massachusetts.    1868. 

[Reported  99  MassachuscUs  Reports,  253.] 

Gray,  J.  This  action  of  replevin  is  brought  b}-  the  seller  of  intoxi- 
cating liquors  against  a  deputy  sheriff  attaching  the  same  as  the  prop- 
erty of  the  purchaser.  The  plaintiff  contends  that  the  sales  were 
induced  by  fraud  of  the  purchaser  and  therefore  passed  no  title  to  him  ; 
and  the  burden  of  proving  this  proposition  is  upon  the  ^iaintrff.^ ' 

The  seller  resided  in  Pennsylvania,  and  the  purchaser  in  Illinois. 
The  goods  were  sold  in  two  lots,  one  in  June  and  the  other  in  August, 
1865,  upon  distinct  orders  sent  by  the  purchaser  to  the  seller.  Al- 
though the  first  order  was  in  accordance  with  terms  of  sale  agreed  on 
between  the  agents  of  the  parties  in  Illinois,  neither  sale  was  complete 
until  deliver}'  of  the  goods.  That  delivery  in  each  case  was  made  to  a 
railroad  corporation  in  Philadelphia,  which,  in  the  absence  of  any 
agreement  between  the  parties  to  the  contrar}',  was  in  law  a  deliver}'  to 
the  purchaser.  Each  contract  of  sale  therefore  was  completed  in  Penn- 
sylvania, and  its  validity  must  be  governed  by  the  laws  of  that  State. 
Orcutt  V.  Nelson,  1  Gray,  536  ;  Finch  v.  Mansfield,  97  Mass.  89  ;  2 
Kent  Com.  (6th  ed.)  458. 

The  laws  of  another  State  are  not  laws  of  this  Commonwealth,  which 
our  citizens  are  bound  to  know,  or  of  which  our  courts  have  judicial 
knowledge  ;  but  they  are  facts,  of  which  both  citizens  and  courts  must 
be  informed  as  of  other  facts.  As  foreign  laws  can  only  be  known  so 
far  as  they  are  proved,  no  evidence  of  them  can  be  admitted  at  the 
argument  before  this  court,  which  was  not  offered  at  the  trial  or  other- 
wise made  part  of  the  case  reserved.  Knapp  v.  Abell,  10  Allen,  485  ; 
Bowditch  V.  Soltyk,  99  Mass.  138.  When  the  evidence  consists  of  the 
parol  testimony  of  experts  as  to  the  existence  or  prevailing  construc- 
tion of  a  statute,  or  as  to  any  point  of  unwritten  law,  the  jury  must 
determine  what  the  foreign  law  is,  as  in  the  case  of  any  controverted 
fact  depending  upon  like  testimon}',  Holman  v.  King,  7  Met.  384  ; 
Dyer  u.  Smith,  12  Conn.  384 ;  Moore  v.  Gwynn,  5  Ired.   187 ;  Ingrar 

2 


18  KLINE   V.    BAKER.  ,  [CHAP.  I. 

ham  V.  Hart,  11  Ohio,  255.  But  the  qualifications  of  the  experts,  or 
other  questions  of  competency  of  witnesses  or  evidence,  must  be  passed 
upon  by  the  court ;  and  wlien  tlie  evidence  admitted  consists  entirely 
of  a  written  document,  statute,  or  judicial  opinion,  the  question  of  its 
construction  and  effect  is  for  the  court  alone.  Church  v.  Hubbart,  2 
Cranch,  187;  Ennis  v.  Smitli,  14  How.  400  ;  Owen  v.  Boyle,  15  Maine, 
147;  State  v.  Jackson,  2  Dev.  563  ;  People  v.  Lambert,  5  Mich.  349  ; 
Bremer  v.  Freeman,  10  jNIoore  P.  C.  306  ;  Di  Sora  v.  Phillipps,  10 
II.  L.  Cas.  624.  And  if  the  evidence  is  uncontradicted,  and  will  not 
support  the  action,  it  is  the  duty  of  the  court  so  to  instruct  the  jur\-. 

B}-  the  law  of  Massachusetts,  purchasing  goods  with  an  intention 
not  to  pay  for  them  is  of  itself  a  fraud  which  will  render  the  sale  void 
and  entitle  the  seller  to  reclaim  the  goods.  Dow  y.  Sanborn,  3  Allen, 
181.  The  only  evidence,  introduced  at  the  trial  of  the  law  of  Penn- 
sylvania upon  this  subject  was  the  cases  of  Smith  r.  Smith,  21  Penn. 
State,  317,  and  Backentoss  v.  Speicher,  31  Penn.  State,  324,  as  pub- 
lished in  the  official  reports,  by  which  it  appears  that,  in  the  opinion  of 
the  Supreme  Court  of  that  State,  there  must  be  "■  artifice,  intended  and 
fitted  to  deceive,  practised  b}-  the  buyer  upon  the  seller,"  in  order  to 
constitute  such  a  fraud  as  will  make  the  sale  void  ;  and  that  the  buy- 
er's intention  not  to  pay  for  the  goods  and  concealment  of  his  own 
insolvency  is  not  such  a  fraud.  These  reports  were  competent,  and,  in 
the  absence  of  all  other  evidence,  conclusive  proof,  of  the  law  of  Penn- 
sylvania. Gen.  Sts.  c.  131,  §  64.  Penobscot  &  Kenebec  Railroad  Co. 
V.  Bartlett,  12  Gray,  244. 

But  the  plaintiff  introduced  evidence  that  Burleigh,  who  was  either  a 
partner  or  the  manager  of  the  business  of  Dore,  the  purchaser,  represented 
to  Sheble,  the  agent  of  the  plaintiff,  at  the  time  of  negotiating  witli  him 
for  the  purchase  of  the  first  lot  of  liquors,  and  within  ten  days  before 
sending  the  order  for  them  to  Philadelphia,  that  Dore  had  a  farm  worth 
ten  thousand  dollars,  and  other  means  amplj"  sufficient  to  carr}'  on  his 
business,  and  that  he  ylwaNS  purchased  for  cash  and  did  not  owe  any 
man  ;  and  that  these  repiesentations  were  false.  This  was  clearly  suf- 
ficient evidence  of  fraudulent  representations  intended  to  induce  and  in 
fact  inducing  the  [)laintiff  to  sell  to  Dore,  or,  in  the  language  of  the 
Supreme  Court  of  Pennsylvania,  "  artifice,  intended  and  fitted  to  de- 
ceive, practised  by  tlie  buyer  upon  the  seller,"  to  warrant  a  jur}'  in 
finding  that  the  purchase  made  immediately  afterwards  on  a  credit  of 
sixty  days,  as  well  as  the  subsequent  purchase  made  before  tliat  credit 
bad  expired,  was  fraudulent  and  passed  no  title.  The  learned  judge 
therefore  erred  in  ruling  that  upon  the  evidence  the  plaintiff  could  not 
recover,  and  in  directing  a  verdict  for  the  defendant.  Nichols  r.  Pin- 
ner, 18  N.  Y.  295,  and  23  N.  Y.  264  ;  Hall  v.  Naylor,  IS  N.  Y.  bSH  ; 
Reenie  '•.  Parthemere,  8  Penn.  State,  460;  Seaver  t'.  Dingley,  4  Greenl. 
306 ;  Wiggin  v.  Day,  9  Gray,  97. 

Exceptions  sustained. 


CHAP.  I.]  FOREPAUGH    V.    D.    L.    &    W.    RAILROAD    CO.  19 


Story,  J.,  in  Owings  v.  Hull,  9  Pet.  607  (1835).  [In  error  to  the 
Circuit  Court  for  the  District  of  Maryland.]  We  are  of  opinion  that 
the  Circuit  Court  was  bound  to  talve  judicial  notice  of  the  laws  of 
Louisiana.  The  Circuit  Courts  of  the  United  States  are  created  by 
Congress,  not  for  the  purpose  of  administering  the  local  law  of  a  single 
State  alone,  but  to  administer  the  laws  of  all  the  States  in  the  Union 
in  cases  to  which  they  respectively  apply.  The  judicial  power  con- 
ferred on  the  general  government  by  the  Constitution  extends  to  many 
cases  arising  under  the  laws  of  the  different  States.  And  this  court  is 
called  upon,  in  the  exercise  of  its  appellate  jurisdiction,  constanth'  to 
take  notice  of  and  administer  the  jurisprudence  of  all  the  States.  That 
jurisprudence  is,  then,  in  no  just  sense,  a  foreign  jurisprudence,  to  be 
proved,  in  the  courts  of  the  United  States,  by  the  ordinary  modes  of 
proof  b}'  which  the  laws  of  a  foreign  countrv  are  to  be  established  ; 
but  it  is  to  be  judicially  taken  notice  of  in  the  same  manner  as  the  laws 
of  the  United  States  are  taken  notice  of  by  these  courts. 


Bradley,  J.,  in  United  States  v.  Perot,  98  U  8.  428  (1879).  We 
are  bound  to  take  judicial  notice  that  the  Mexican  league  was  not  the 
same  as  the  American  league.  The  laws  of  Mexico,  of  force  in  Texas 
previous  to  the  Texan  Revolution,  were  the  laws  not  of  a  foreign,  but 
of  an  antecedent  government,  to  which  the  Government  of  the  United 
States,  tlirough  the  medium  of  the  Republic  of  Texas,  is  the  direct 
successor.  Its  laws  are  not  deemed  foreign  laws  ;  for  as  to  that  por- 
tion of  our  territor}'  they  are  domestic  laws  ;  and  we  take  judicial 
notice  of  them.     Fremont  v.  U.  S.,  17  How.  542,  557. 


FOREPAUGH  v.   DELAWARE,  LACKAWANNA  &  WESTERN 

RAILROAD  CO. 

Supreme  Court  of  Pennsylvania.     1889. 

[Reported  128  Pennsylvania  State  Reports,  217.] 

Mitchell,  J.  Plaintiff,  being  the  proprietor  of  a  circus,  made  a 
special  contract  with  defendant  for  the  transportation  of  a  number  of 
his  own  cars,  upon  certain  conditions  and  terms  elaborately  set  out  in 
writing,  among  which  was  a  stipulation  that,  in  consideration  that  the 
service  was  to  be  performed  "  for  much  less  than  the  ordinary,  usual, 
and  legal  rates  charged  other  parties  for  a  like  amount  of  transporta- 
tion," the  plaintiff  released  the  defendant  from  all  liability  for  or  on 
account  of  loss,  damage,  or  injur}'  to  anv  of  the  animals,  property,  or 
things  thus  transported,  "although  such  loss,  damage,  or  injury  may 


20  FOEEPAFGH    V.    T).    L.    &    \Y.    RAILROAD    CO.  [CHAP.  I. 

be  caused  by  the  negligence  of  the  [defendant],  its  agents  or  em- 
plo3-es."  Damage  having  occurred  by  tlie  negligence  of  defendant, 
plaintiff  brought  this  suit,  and  the  sole  question  before  us  is  whether  it 
can  he  maintained  in  the  face  of  the  stipulation  above  set  forth. 

The  contract  was  made,  was  to  be  performed,  and  the  alleged  breach 
occurred,  in  New  York.  No  possible  element  was  wanting,  therefore, 
to  make  it  a  New  York  contract.  It  is  admitted  that  in  New  York  the 
stipulation  is  valid,  and  this  action  could  not  be  maintained.  Cragin  v. 
Railroad  Co.,  ol  N.  Y.  61;  Mynard  c.  Railroad  Co.,  71  N.  Y.  180; 
Wilson  ;■.  Railroad  Co.,  97  X.  Y.  87.  Why,  then,  should  plaintiff,  by 
stepping  across  the  boundary  into  Pennsylvania,  acquire  rights  which 
he  has  not  paid  for,  and  his  contract  does  not  give  him  ? 

It  is  argued  that  the  validity  of  this  contract  is  a  question  of  com- 
mercial law,  and  therefore  the  mere  decisions  of  the  New  York  courts 
are  not  binding;  and,  in  the  absence  of  any  statute  in  New  York 
expressly  authorizing  such  a  contract,  the  courts  of  this  State  must 
follow  their  own  views  of  the  commercial  as  part  of  the  general  com- 
mon law,  though  different  views  ma}'  be  held  as  to  such  law  hy  the 
courts  of  New  York.  This  is  the  main  argument  of  the  plaintiff,  and, 
as  it  is  one  which  is  frequently  advanced,  and  affects  a  number  of 
important  questions,  it  is  time  to  sa^'  plainly  that  it  rests  upon  an 
utterly'  inadmissible  and  untenable  basis.  There  is  no  such  thing  as  a 
general  commercial  or  general  common  law,  separate  from,  and  irrespec- 
tive of,  a  particular  State  or  government  whose  authority  makes  it  law. 
Law  is  defined  as  a  rule  prescribed  by  the  sovereign  power.  B}'  whom 
is  a  general  commercial  law  prescribed,  and  what  tribunal  has  authoi'ity 
or  recognition  to  declare  or  enforce  it,  outside  of  the  local  jurisdiction 
of  the  government  it  represents?  Even  the  law  of  nations,  the  widest 
reaching  of  all,  is  a  law  only  in  name.  It  has  but  a  moral  sanction, 
and  the  only  tribunal  that  undertakes  to  enforce  it  is  the  armed  hand, 
the  ultima  ratio  region.  The  so-called  commercial  law  is  likewise  a 
law  only  in  name.  Upon  many  questions  arising  in  the  business  deal- 
ings of  men,  the  laws  of  modern  civilized  States  are  substantially  the 
same;  and  it  is  therefore  common  to  sa}'  that  such  is  the  commercial 
law,  but,  except  as  a  convenient  phrase,  such  general  law  does  not 
exist.  There  must  be  a  State  or  government,  of  which  every  law  can 
be  predicated,  and  to  whose  authority  it  owes  its  existence  as  law. 
Without  such  sanction,  it  is  not  law  at  all ;  with  such  sanction,  it  is 
law  without  reference  to  its  origin,  or  the  concurrence  of  other  States 
or  people.  Such  sanction  it  is  the  i)rerogative  of  the  courts  of  each 
State  themselves  to  declare.  Their  jurisdiction  is  final  and  exclusive, 
and  in  this  respect  there  is  no  distinction  between  statute  and  common 
law.  It  is  universally  conceded  that,  as  to  statutes,  the  decisions  of 
the  State  courts  are  binding  upon  all  other  tril)unals,  yet  such  decisions 
have  no  higlier  sanction  than  those  upon  the  common  law  ;  for  what 
the  latter  determine,  equally  with  the  former,  is  the  law  of  the  particu- 
lar  State.     The   law  of   Pennsylvania  consists   of   the  Constitution. 


CHAP,  I.]  FOREPAUGH    V.    D.    L.    &   W.    EAILROAD    CO.  21 

treaties,  and  statutes  of  the  United  States,  the  Constitution  and 
statutes  of  this  State,  and  the  common  law,  not  of  any  or  all  other 
countries,  but  of  Pennsylvania.  There  is  a  common  law  of  England, 
and  a  common  law  of  Pennsylvania  mainly  founded  thereon,  but  with 
certain  differences :  and  the  only  tribunal  competent  to  pass  authorita- 
tively on  such  differences  is  a  Pennsylvania  court.  To  take  a  familiar 
illustration  :  In  the  United  States  the  universal  doctrine  has  always 
been  that  the  English  colonists  brought  with  them,  and  made  part  of 
their  laws,  all  the  common  law  of  England  that  was  not  unsuited  to 
their  new  situation.  No  part  of  the  common  law  of  England  is  better 
settled  than  the  doctrine  of  ancient  lights.  The  Court  of  Chancer}-  of 
New  Jersey,  in  Robeson  v.  Pittenger,  2  N.  J.  Eq.  57  (1838),  held 
that  the  same  doctrine  was  part  of  the  common  law  of  New  Jerse}'. 
The  Supreme  Court  of  Pennsylvania,  on  the  other  hand,  starting  with 
the  same  premises,  and  reasoning  on  the  same  principles  but,  proceed- 
ing cautioush'  from  the  dictum  of  Rogers,  J.,  in  H03'  v.  Sterrett, 
2  Watts,  331  (1834),  to  the  unanimous  decision  of  the  court  in 
Haverstick  v.  Sipe,  33  Pa.  St.  368  (1859),  held  that  the  doctrine 
of  ancient  lights  bj'  prescription  was  not  part  of  the  common  law  of 
Pennsylvania.  No  tribunals  of  any  other  State  presume  to  question 
that  the  common  law  of  New  Jersey  and  the  common  law  of  Penn- 
sylvania differ  on  this  point.  What  is  law  in  one  State  is  not  law  in 
the  other,  not  because  it  was  or  was  not  the  common  law  of  England, 
but  because  it  is  or  is  not  the  law  of  the  respective  States  ;  and,  though 
it  rests  only  on  the  decisions  of  the  courts,  it  is  none  the  less  absolutely 
and  indisputably  the  law,  than  if  it  had  been  made  so  by  statute.  I 
have  purposelv  selected  an  illustration  from  the  law  relating  to  real 
estate,  because,  if  I  took  one  from  the  commercial  law,  it  might  seem 
like  assuming  the  very  question  under  discussion.  But  the  example  is 
none  the  less  pertinent.  The  point  is  the  force  of  judicial  decisions  on 
the  common  law,  and  the  assumption  that  there  is  an}' tenable  basis  for 
holding  them  less  binding  upon  such  law  than  upon  statutes.  The  so- 
called  commercial  law  derives  all  its  force  from  its  adoption  as  part  of 
the  common  law,  and  a  decision  on  the  commercial  law  of  a  State 
stands  upon  precisely  the  same  basis  as  a  decision  upon  any  other 
branch  of  the  common  law.  The  onl}'  ground  upon  which  any  foreign 
tribunal  can  question  either  is  that  it  does  not  agree  with  the  premises 
or  the  reasoning  of  the  court.  But  the  same  ground  would  enable  it  to 
question  a  decision  upon  a  statute  because  a  different  construction 
seemed  to  it  nearer  the  true  intent  of  the  legislative  language,  and  this, 
it  is  universall}'.  conceded,  no  foreign  court  can  do.  There  is  no  differ- 
ence in  principle.  The  decisions  of  a  State  court,  upon  its  common 
law  and  on  its  statutes,  must  stand  unquestioned,  because  it  is  the 
only  authorit}'  competent  to  decide  ;  or  they  must  be  alike  question- 
able by  any  tribunal  which  ma}'  choose  to  differ  with  its  reasons  or 
its  conclusions. 

It  is  not  probable  that  the  doctrine  of  such  a  distinction  would  ever 
have  got  a  foothold  in  jurisprudence,  and  it  would  certainly  have  been 


OO  FOKEPAUGH    V.    D.    L.    &    W.    RAILROAD    CO.  [CHAP.  I. 

long  ago  abandoned,  had  it  not  been  for  the  unfortunate  misstep  that 
wa^made  in  the  opinion  in  Swift  v.  Tyson,  16  Pet.  1.  Since  then  the 
courts  of  the  United  States  have  persisted  in  the  recognition  of  a 
mythical  commercial  law,  and  have  professed  to  decide  so-called  com- 
mercial questions  by  it,  in  entire  disregard  of  the  law  of  the  State 
where  the  question  arose.  It  is  argued  now  that,  as  to  such  questions, 
the  State  courts  also  have  similar  Uberty.  It  would  be  sufficient  an- 
swer to  this  argument  that  such  a  course,  by  reading  into  a  contract  a 
new  duty  not  in  contemplation  of  the  parties,  and  not  part  of  it  by 
the  law  of  the  place  where  it  is  made,  is,  in  principle  and  in  practical 
effect,  imi)airing  the  obligation  of  the  contract,  which  even  the  sover- 
eign power  of  a  State  is  prohibited  from  doing.  But  we  prefer  to 
rest  the  matter  on  the  broader  ground  that  the  doctrine  itself  is  un- 
sound. The  best  professional  opinion  has  long  regarded  it  as  indefen- 
sible on  principle,  and  is  thus  very  recently  summed  up  by  the  most 
le:irned  of  living  jurists:  '^  Questions  growing  out  of  contracts  made 
and  to  be  performed  in  a  State  are  decided  by  the  national  court  of  last 
resort,  not  in  accordance  with  the  unwritten  or  customary  law  of  the 
State  where  they  originated,  as  expounded  by  its  courts,  but  agreeably 
to  some  theoretic  view  of  a  general  commercial  law,  which  does  not 
exist,  and  is  not  to  be  found  in  the  books.  The  State  courts,  on  the 
other  hand,  adhere  to  their  own  precedents,  and  do  not  consider  them- 
selves entitled  to  impair  the  obligation  of  contracts  that  have  been 
made  in  reliance  on  the  principles  which  they  have  laid  down  through 
a  long  series  of  years.  The  result  is  a  conflict  of  jurisdiction  which 
there  are  no  means  of  allaying.  .  .  .  \Yhether  a  recovery  shall  be  had 
on  a  promissory  note  which  has  been  taken  as  collateral  security  for  an 
antecedent  debt  against  a  maker  from  whom  it  was  obtained  by  fraud, 
is  thus  made  to  turn  in  New  York,  Pennsylvania,  and  Ohio,  not  on  any 
settled  rule,  but  on  the  tribunal  by  which  the  cause  is  heard  ;  and,  if 
that  is  federal,  the  plaintiff  will  prevail ;  if  it  is  local,  the  defendant. 
Such  a  result  tends  to  discredit  the  law.  .  .  .  The  enumeration  might 
l)e  carried  further,  but  enough  has,  perhaps,  been  said  to  show  that  no 
uniform  rule  can  be  deduced  from  the  decisions  of  the  English  and 
American  courts  under  the  commercial  law,  and  that  the  certainty 
requisite  to  justice  can  be  obtained  onl\'  by  following  the  local  tribunals 
as  regards  the  contracts  made  in  each  localit}'.  The  several  States  of 
this  country  are  collectiveh*  one  nation,  but  they  are  as  self-governing 
in  all  that  concerns  their  purely*  internal  commerce  as  if  the  general 
g(nernment  did  not  exist ;  and  when  the  will  of  the  people  of  New 
York  or  Pennsylvania  is  declared  on  such  matters,  thrQugh  their  repre- 
sentatives in  the  local  legislatures,  expressly  or  by  long-continued 
acquiescence  in  the  rules  enunciated  by  their  judges,  it  cannot  be  set 
aside  by  Congress  short  of  an  amendment  of  the  Constitution.  Had 
the  New  Y'ork  legislature  declared  that  notes  made  and  negotiated  in 
that  State  siiould  follow  the  rule  laid  down  in  Coddington  v.  Bay 
[20  Johns.  637],  the  federal  tribunals  would  have  been  bound  to  carry 
it  into  effect,  notwithstanding  any  attempt  of  the  national  legislature 


CHAP.  I.]  FOREPAUGH    V.    D.    L.    &    M\    EAILKOAD    CO.  23 

to  introduce  a  different  principle  ;  and  it  is  inconceivable  that  the 
judicial  department  of  the  government  can  exercise  a  greater  authority 
in  this  regard  than  the  legislature."  Hare,  Const.  Law,  1107,  1117, 
and  see  Lecture  51,  passim. 

We  conclude,  therefore,  that  the  distinction  between  the  binding 
effect  of  decisions  on  commercial  law  and  on  statutes  is  utterh- 
untenable  ;  that  the  law  declared  b}-  State  courts  to  govern  on  con- 
tracts made  within  their  jurisdiction  is  conclusive  everywhere  ;  and  the 
departure  made  by  the  United  States  courts  is  to  be  reo-retted,  and 
certainly  not  to  be  followed.  In  entire  accordance  with  this  view  are 
our  own  cases  of  Brown  v.  Railroad  Co.,  83  Pa.  St.  316,  and  Brooke 
V.  Railroad  Co.,  108  Pa.  St.  530,  1  Atl.  Rep.  206  ;  and  the  decisions 
in  Ohio :  Knowlton  v.  Railway  Co.,  19  Ohio  St,  260  ;  in  Illinois  :  Penn- 
sylvania Co.  V.  Fairchild,  69  111.  260  ;  Railroad  Co.  v.  Smith,  74  III. 
197  ;  in  Iowa  :  Talbott  v.  Transportation  Co.,  41  Iowa,  247  ;  Robinson 
V.  Transportation  Co.,  45  Iowa,  470;  in  Connecticut:  Hale  v.  Naviga- 
tion Co.,  15  Conn.  539;  in  Kansas:  Railroad  Co.  v.  Moore,  29  Kan. 
632;  in  South  Carolina:  Bridger  v.  Railroad  Co.,  27  S.  C.  462,  3  S.  E. 
Rep.  860  ;  in  Georgia  :  Railroad  Co.  v.  Tanner.  dS  Ga.  390  ;  in  Missis- 
sippi:  McMaster  v.  Railroad  Co.,  65  Miss.  271,  4  South.  Rep,  59;  in 
Texas :  Cantu  v.  Bennett,  39  Tex.  303  ;  Ryan  v.  Railway  Co.,  65  Tex. 
13,  and  perhaps  in  other  States.  I  will  not  notice  them  in  detail 
further  than  to  quote  the  terse  and  forcible  summary  made  by  Scott,  J,, 
in  Knowlton  v  Railway  Co. :  ''  As  the  contract  was  made  within  the! 
jurisdiction  of  New  York,  and  contemplated  no  action  outside  of  thati 
jurisdiction,  it  is  clear  that  the  question  of  its  validity  must  be  deter-' 
mined  solely  by  the  laws  of  New  York.  The  rights  and  obligations  of 
the  parties  to  such  a  contract,  and  in  respect  to  the  manner  of  its 
execution,  cannot  be  affected  by  the  laws  or  policy  of  other  States.  ! 
If  no  cause  of  action  arose  to  the  plaintiff  under  his  contract  when  the 
accident  occurred,  the  transaction  cannot  be  converted  into  a  cause  of 
action  by  the  fact  that  the  parties  have  subsequently  come  within  the 
jurisdiction  of  Ohio."  Holding,  therefore,  that  the  validity  of  this 
contract  is  to  be  determined  by  the  law  of  New  York,  as  decided  hj 
the  courts  of  that  State,  is  there  any  reason  wh}'  the  courts  of  this 
State  should  not  enforce  it?  CThe  general  rule  is  that  courts  will 
enforce  contracts  valid  by  the  law  of  the  place  where  made,  unless 
the}-  are  injurious  to  the  interests  of  the  State,  or  of  its  citizens.  > 
Story,  Confl.  Laws,  §§  38,  244.  The  injury  may  be  indirect  by  offend- 
ing against  justice  or  morality,  or  by  tending  to  subvert  settled  public  ' 
policy  (2  Kent,  Com.  458  ;  Greenwood  v.  Curtis,  6  Mass.  358  ;  Bliss 
V.  Brainard,  41  N,  H.  256)  ;  but  this  does  not  imply  that  courts  will 
not  sustain  contracts  that  would  not  be  valid  if  made  within  their  juris- 
diction, or  will  not  enforce  rights  that  could  not  be  acquired  there. 
Thus,  for  example,  the  courts  of  Pennsylvania  have  always  enforced 
contracts  for  a  higher  rate  of  interest  than  would  be  valid  under  the 
laws  of  this  State.  Ralph  v.  Brown,  3  Watts  &  S.  395  ;  Wood  v. 
Kelso,  27  Pa.  St.  243 ;  Irvine  v.  Barrett,  2  Grant,  Cas.  73.     The  con- 


24  FOKEPAUGH    V,    D.    L.    &    W.    RAILROAD    CO.  [CHAP.  I. 

tract  in  the  present  case  does  not  direct]}'  affect  the  State  or  its  citizens 
in  anj'  wa}'.  Nor  is  it  in  any  wa}'  contrary'  to  justice  or  moraUtj-.  It 
ma}-  be  doubted  whether  it  is  even  so  far  contrary  to  the  policy  of  the 
State  that  it  would  have  been  invalid  iC  it  had  been  made  here.  It 
has  some  exceptional  features,  which,  it  is  argued,  take  it  out  of  the 
ordinar}-  lules  governing  the  contracts  of  common  carriers  ;  and  the 
case  of  Coup  v.  Railroad  Co.,  56  Mich.  Ill,  22  N.  W.  Rep.  215,  is  a 
strong  authority  for  that  position.  But  without  stopping  to  discuss 
that  point,  which  our  general  view  renders  unnecessar}',  it  is  sufficient 
to  say  that,  even  if  it  would  not  have  been  valid  if  made  here,  its 
enforcement  as  a  New  York  contract  does  not  in  any  way  derogate 
from  the  laws  of  Pennsylvania,  or  injure  or  affect  the  polic}'  of  the 
State,  any  more  than  would  a  foreign  contract  for  what  would  be 
usurious  interest  here,  and  that,  as  already  said,  the  courts  have  never 
hesitated  to  enforce. 

The  argument  of  duress  ma}'  be  brief!}'  dismissed  for  want  of  any 
evidence  in  the  case  to  sustain  it.  There  is  no  evidence  that  defend- 
ant was  unwilling  to  accept  the  ordinary  and  usual  rates  for  the  trans- 
portation of  plaintiff's  cars  and  property.  If  they  had  been  offered  by 
plaintiff  and  refused,  there  might  have  been  some  ground  for  the 
present  argument,  though,  in  view  of  the  peculiar  nature  of  the 
property,  and  the  special  facilities  required,  even  that  is  far  from  clear. 
But  in  fact  plaintiff  got  a  large  reduction  of  rates,  and  part  of  the 
consideration  for  such  reduction  was  the  agreement  that  he  should  be 
his  own  insurer  against  loss  by  accident.  There  was  nothing  com- 
pulsory about  such  a  contract,  and  plaintiff  comes  now  with  a  very 
bad  grace  to  assert  a  right  that  he  expressly  relinquished  for  a  sub- 
stantial consideration. 

The  learned  court  below  was  right  in  entering  judgment  for  the 
defendant  on  the  facts  found  in  the  special  verdict. 

Judgment  affirmed. 

Williams,  J.  (dissenting).  I  dissent  from  the  judgment  in  this  case 
because  I  cannot  agree  that  a  well-settled  rule  of  public  policy  of  this 
commonwealth  must  give  way  to  considerations  of  mere  comity.  The 
contract  set  up  as  a  defence  to  this  action  is  a  release  to  a  common 
carrier  from  liability  for  its  own  negligence.  It  is  well  settled  in  this 
State  that  such  a  release  is  against  public  policy.  Comity  does  not 
require  more  of  us  than  to  give  effect  to  the  lex  loci  co/itradus.,  when 
not  subversive  of  the  public  policy  of  our  own  State.  This  has  been 
distinctly  held  by  the  Court  of  Appeals  of  New  York,  in  which  this 
release  was  executed,  and  in  whose  behalf  comity  is  asked.  I  would 
follow  the  Court  of  Appeals,  because  comity  fan  require  no  more  of 
us  in  any  given  case  than  the  courts  of  the  place  of  tlic  contract  would 
yield  to  us  for  comity's  sake,  and  because  I  believe  the  rule  to  rest  on 
solid  ground 

Sterrett,  J.,  concurs  in  the  foregoing  dissent. 


SECT.   I.J 


BELL   V.    KENNEDY.  25 


CHAPTER   II. 

JUKISDICTION  OVER  PERSONS  AND  THINGS. 


SECTION   I. 

DOMICILE.^ 


BELL   V.  KENNEDY. 

House  of  Lords.     1868. 

[Reported  Law  Reports,  1  House  of  Lords  (Scotch),  307.] 

The  Lord  Chancellor  (Lord  Cairns). ^  My  Lords,  this  appeal 
arises  in  an  action  commenced  in  the  Court  of  Session,  I  regret  to 
say  so  long  ago  as  the  year  1858;  in  the  course  of  which  action 
no  less  than  sixteen  interlocutors  have  been  pronounced  by  the 
court,  all,  or  the  greater  part  of  which,  become  inoperative  or  imma- 
terial if  your  Lordships  should  be  unable  to  concur  in  the  view  taken 
by  the  court  below  of  the  question  of  domicile. 

The  action  is  raised  by  Captain  Kennedy,  and  his  wife,  the 
daughter  of  the  late  Mrs.  Bell ;  and  the  defender  is  Mrs.  Kennedy's 
fath°er,  the  husband  of  Mrs.  Bell.  The  claim  is  for  the  share,  said 
to  belong  to  Mrs.  Kennedy,  of  the  goods  held  in  communion  between 
Mr.  and  Mrs.  Bell.  This  claim  proceeds  on  the  allegation  that  the 
domicile  of  Mrs.  Bell,  at  the  time  of  her  death  on  the  28th  of  Sep- 
tember, 1838,  was  in  Scotland.  And  the  question  itself  of  her  domi- 
cile at  that  time  depends  upon  the  further  question,  what  was  the 
domicile  of  her  husband?  Her  husband,  the  appellant,  is  still 
living;  and  your  Lordships  have  therefore  to  consider  a  case  which 
seldom  arises,  the  question,  namely,  of  the  domicile  at  a  particular 
time  of  a  person  who  is  still  living. 

Mr.  Bell  was  born  in  the  island  of  Jamaica.  His  parents  had 
come  there  from  Scotland,  and  had  settled  in  the  island.  There 
appears  to  be  no  reason  to  doubt  but  that  they  were  domiciled  in 
Jamaica.     His  father  owned  and  cultivated  there  an  estate  called  the 

1  For  the  general  principles  of  nationality  see  Calvin's  Case,  7  Co.  1;  U.  S.  v.  Wong 
Kim  Ark,  169  U.  S.  649.  —  Ed. 

2  The  statement  of  facts  is  omitted,  as  are  also  the  concurring  opinions  of  Lords 
Cranworth,  Chelmsford,  and  Colonsay.  —  Ed. 


26  TIELL    V.    KENNEDY.  [CHAP.    II. 

Woodstock  estate.  His  mother  died  when  the  appellant  was  about 
the  age  of  two  years,  and  immediately  after  his  mother's  death  he 
was  sent  to  Scotland  for  the  purpose  of  nurture  and  education.  By 
his  father's  relatives  he  was  educated  in  Scotland  at  school,  and  he 
afterwards  proceeded  to  college.  His  father  appears  to  have  died 
when  he  was  about  the  age  of  ten  years,  dying,  in  fact,  as  he  was 
coming  over  to  Great  Britain  for  his  health,  but  with  the  intention 
of  returning  to  Jamaica. 

The  appellant,  after  passing  through  college  in  Scotland,  travelled 
upon  the  Continent;  and  soon  after  he  attained  the  age  of  twenty-one 
years  he  went  out  again  to  Jamaica,  in  the  year  1823,  with  the  inten- 
tion of  carrying  on  the  cultivation  of  the  Woodstock  estate,  which, 
in  fact,  was  the  only  property  he  possessed.  He  cultivated  this 
estate  and  made  money  to  a  considerable  amount.  He  arrived  at  a 
position  of  some  distinction  in  the  island.  He  was  the  custos  of 
the  parish  of  St.  George,  and  was  a  member  of  the  Legislative 
Assembly.  He  married  his  late  wife,  then  Miss  Hosack,  in  Jamaica 
in  the  year  1828;  and  he  had  by  her,  in  Jamaica,  three  children. 

It  appears  to  me  to  be  beyond  the  possibility  of  doubt  that  the 
domicile  of  birth  of  Mr.  Bell  was  in  Jamaica,  and  that  the  domicile 
of  his  birth  continued  during  the  events  which  I  have  thus  described. 
In  the  year  1834  a  change  was  made  in  the  law  with  regard  to 
slavery  in  the  island  of  Jamaica,  which  introduced,  in  the  first 
instance,  a  system  of  apprenticeship,  maturing  in  the  year  1838  into 
a  complete  emancipation.  This  change  appears  to  have  been  looked 
upon  by  Mr.  Bell  with  considerable  disfavor,  and,  his  health  fail- 
ing, in  the  year  ^837  he  determined  to  leave  Jamaica,  and  to  return 
to  some  part,  at  all  events,  of  Great  Britain.  He  entered  into  a  con- 
tract for  the  sale  of  the  Woodstock  estate,  the  purchase-money  being 
made  payable  by  certain  instalments;  and  in  1837  he  left  the  island, 
to  use  his  own  expression,  "for  good."  He  abandoned  his  residence 
there  without  any  intention  at  that  time,  at  all  events,  of  returning 
to  the  island.  He  reached  London  in  the  month  of  June,  1837.  He 
remained  in  London  for  a  short  time,  apparently  about  ten  days,  and 
he  then  went  on  to  Edinburgh,  and  took  up  his  abode  under  the  roof 
of  the  mother  of  his  wife,  Mrs.  Hosack,  who  at  that  time  was  living 
in  Edinburgh. 

I  ought  to  have  stated  that  while  the  appellant  was  in  Jamaica  be 
appears  to  have  kept  up  a  correspondence  with  his  relatives  and 
friends  in  Scotland.  In  the  year  1833  he  acquired  (I  prefer  to  use 
the  term  "acquired"  rather  than  the  word  "purchased  ")  the  estates 
of  Glengabers  and  Craka.  He  appears  to  have  taken  to  those  estates 
mainly  in  settlement  of  a  claim  for  some  fortune  or  money  of  his 
wife  secured  upon  them.  It  is  apparent,  however,  that  he  had  at  no 
time  any  intention  of  residing  upon  Glengabers,  and.  in  fact,  the 
acquisition  of  those  estates  bears  but  little,  in  my  opinion,  upon  the 
question  of  domicile,  because  in  1833,  when  he  acquired  them,  his 


SECT.    I.]  BELL    V.   KENNEDY.  27 

domicile,  beyond  all  doubt,  was,  and  for  some  years  afterwards  con- 
tinued to  be,  in  Jamaica. 

He  wrote  occasionally  at  that  time  from  Jamaica,  evincing  a  desire 
to  buy  an  estate  at  some  future  period  in  Scotland,  if  he  could  obtain 
one  to  his  liking,  and  even  an  intention,  if  he  could  obtain  such  an 
estate,  of  living  in  Scotland,  but  nothing  definite  appears  to  have 
been  arranged  or  said  upon  the  subject;  and,  in  fact,  at  this  time 
other  suggestions  as  to  other  localities  appear  to  have  been  occasion- 
ally entertained  and  considered  by  him. 

In  these  letters  he  frequently  uses  an  expression  that  was  much 
insisted  upon  at  the  bar  —  the  expression  of  "coming  home;"  but 
I  think  it  will  be  your  Lordships'  opinion  that  the  argument  is  not 
much  advanced,  one  way  or  the  other,  by  that  expression.  It  ap- 
pears to  me  to  be  obviously  a  form  of  language  that  would  naturally 
be  used  by  a  colonist  in  Jamaica  speaking  of  the  mother  country  in 
contradistinction  to  the  colony. 

Up  to  this  point,  my  Lords,  there  is  really  no  dispute  with  regard 
to  the  facts  of  the  case.  The  birth-domicile  of  the  appellant  in 
Jamaica  continued,  at  all  events  till  1837,  and  the  onus  lies  upon 
those  who  desire  to  show  that  there  was  a  change  in  this  domicile, 
by  which  I  mean  the  personal  status  indicated  by  that  word, — the 
onus,  I  say,  lies  upon  those  who  assert  that  the  personal  status  thus 
acquired,  and  continued  from  the  time  of  his  birth,  was  changed,  to 
prove  that  that  change  took  place.  The  law  is,  beyond  all  doubt, 
clear  with  regard  to  the  domicile  of  birth,  that  the  personal  status 
indicated  by  that  term  clings  and  adheres  to  the  subject  of  it  until 
an  actual  change  is  made  by  which  the  personal  status  of  another 
domicile  is  acquired. 

I  do  not  think  it  will  be  necessary  to  examine  the  various  defini- 
tions which  have  been  given  of  the  term  "domicile."  The  question 
which  I  will  ask  your  Lordships  to  consider  in  the  present  case  is, 
in  substance,  this:  Whether  the  appellant,  before  the  28th  of  Sep- 
tember, 1838,  the  day  of  the  death  of  his  wife,  had  determined  to 
make,  and  had  made,  Scotland  his  home,  with  the  intention  of  estab- 
lishing himself  and  his  family  there,  and  ending  his  days  in  that 
country?  The  onus,  as  I  have  said,  is  upon  the  respondents  to 
establish  this  proposition. 

I  will  ask  your  Lordships,  in  the  first  place,  to  look  at  the  facts 
subsequent  to  the  return  of  the  appellant  to  Scotland,  as  to  which 
there  is  no  dispute,  then  at  the  character  of  the  parol  evidence  which 
has  been  adduced,  and,  finally,  at  a  few  passages  in  the  correspond- 
ence which  is  in  evidence. 

As  regards  the  facts  which  are  admitted,  they  amount  to  this: 
The  appellant  lived  under  the  roof  of  Mrs.  Hosack  from  the  time  of 
his  arrival  in  Edinburgh,  in  the  year  1837,  until  the  1st  of  June, 
1838.  He  appears  to  have  borne  the  whole,  or  the  greater  part  of 
her  house-keeping  expenses  during  that  time.     He  inquired  for,  and 


28  BELL   V.    KENNEDY.  [CHAP.   II. 

looked  after,  various  estates,  in  the  south  of  Scotland  especially,  and 
he  indicated  a  preference  for  the  estates  of  Blairston  or  Auchin- 
draine,  of  Mollance,  and  of  Enterkine.  With  regard  to  Blairston  or 
Auchindraine,  it  does  not  appear,  so  far  as  I  can  discover,  to  have 
been  actually  offered  to  him  for  sale.  With  regard  to  Mollance, 
before  he  came  to  any  determination  as  to  it,  it  was  sold  to  another 
person.  With  regard  to  Enterkine,  at  the  time  we  are  speaking  of, 
the  1st  of  June,  1838,  a  negotiation  had  been  going  on  by  letters 
written  between  the  appellant  and  those  who  were  proposing  to  sell 
the  estate,  but  the  offer  which  he  ultimately  made  for  it  had  at  that 
time  been  refused,  and,  on  the  1st  of  June,  1838,  there  was  no  pend- 
ing offer  on  his  part  for  the  property.  Mrs.  Bell,  his  wife,  at  this 
time  was  expecting  her  confinement.  The  house  of  his  mother-in- 
law,  in  which  they  were  sojourning,  was  not  sufficiently  commodious 
for  their  wants,  and  the  appellant  took  for  one  year  a  furnished 
house  in  Ayrshire,  called  Trochraigue.  He  took  it  with  no  inten- 
tion, apparently,  of  buying  the  estate,  although  it  appears  to  have 
been  for  sale,  but  with  the  intention  of  living  for  a  year  in  the 
house,  and  he  hired  servants  for  his  accommodation.  He  removed 
to  Trochraigue  on  the  1st  of  June,  1838,  and,  while  so  sojourning 
there,  Mrs.  Bell  died  in  her  confinement  on  the  28th  of  September  in 
that  year. 

It  appears  to  me,  beyond  all  doubt,  that  prior  to  this  time  the 
appellant  had  evinced  a  great  and  preponderating  preference  for 
Scotland  as  a  place  of  residence.  He  felt  and  expressed  a  great 
desire  to  find  an  estate  there  with  a  residence  upon  it,  with  which 
be  would  be  satisfied.  His  wife  appears  to  have  been  even  more 
flxious  for  this  than  he  himself  was;  and  her  mother  and  their 
riends  appear  to  have  been  eager  for  the  appellant  to  settle  in 
Scotland.  There  is  no  doubt  that,  since  the  death  of  his  wife,  he 
actually  has  bought  the  estate  which  I  have  mentioned,  the  estate  of 
Enterkine,  and  that  his  domicile  is  now  in  Scotland.  All  that,  in 
my  opinion,  would  not  be  enough  to  effect  the  acquisition  of  a  Scotch 
domicile.  There  was,  indeed,  a  strong  probability  up  to  the  time  of 
the  death  of  his  wife  that  he  would  ultimately  find  in  Scotland  an 
estate  to  his  liking,  and  that  he  would  settle  there.  But  it  appears 
to  me  to  be  equally  clear  that  if,  in  the  course  of  his  searches,  a 
property  more  attractive  or  more  eligible  as  an  investment  had  been 
offered  to  him  across  tiie  Border,  he  might,  without  any  alteration 
or  change  in  the  intention  which  he  expressed  or  entertained,  have 
acquired  and  purchased  such  estate  and  settled  upon  it,  and  thus 
have  acquired  an  English  domicile.  In  point  of  fact,  he  made  more 
or  less  of  general  iiuiuiry  after  estates  in  England;  and  a  circum- 
stance is  told  us  by  one  of  the  witnesses,  Mr.  Telfer,  which  seems  to 
me  of  great  significance.  Mr.  Telfer  says  that  his  relations  enter- 
tained great  apprehension  or  dread  that  he  would  settle  in  England  — 
a  state  of  feeling  on  their  part  totally  inconsistent  with  the  notion 


SECT.    I.]  BELL   V.    KENNEDY.  29 

that  he  had,  to  their  knowledge,  at  that  time  determined  ultimately 
and  finally  to  settle  in  Scotland. 

These  being  the  admitted  facts,  let  me  next  turn  to  the  character 
of  the  parol  evidence  in  the  case.  As  to  the  evidence  of  the  mem- 
bers of  the  Hosack  family,  and  of  the  servants,  very  little  is  to  be 
extracted  from  it  in  the  shape  of  information  upon  which  we  can 
rely.  They  speak  of  what  they  considered  and  believed  was  the 
intention  of  the  appellant;  but  as  to  anything  he  said  or  did,  to 
which  alone  your  Lordships  could  attend,  they  tell  us  nothing  beyond 
what  we  have  from  the  letters.  As  to  the  evidence  of  the  appellant 
himself,  I  am  disposed  to  agree  very  much  with  what  was  said  at  the 
bar,  that  it  is  to  be  accepted  with  very  considerable  reserve.  An 
appellant  has  naturally,  on  an  issue  like  the  present,  a  very  strong 
bias  calculated  to  infiuence  his  mind,  and  he  is,  moreover,  speaking 
of  what  was  his  intention  some  twenty-five  years  ago.  I  am  bound, 
however,  to  say,  and  therein  I  concur  with  what  was  said  by  the 
Court  of  Session,  that  the  evidence  of  the  appellant  appears  to  be 
fair  and  candid,  and  that  certainly  nothing  is  to  be  extracted  from  it 
which  is  favorable  to  the  respondents  as  regards  the  onus  of  proof 
which  they  have  to  discharge. 

I  will  now  ask  your  Lordships  to  look  at  what  to  my  mind  appears 
the  most  satisfactory  part  of  the  case,  namely,  the  correspondence 
contemporaneous  with  the  events  in  the  years  1837  and  1838.  I  do 
not  propose  to  go  through  it  at  length,  but  I  will  ask  you  to  consider 
simply  certain  principal  epochs  in  the  correspondence  from  which,  as 
it  appears  to  me,  we  derive  considerable  light  as  to  the  intentions  of 
the  appellant. 

In  the  first  place,  I  turn  to  a  letter  written  by  the  appellant  on  the 
26th  of  September,  1837,  three  months  after  the  appellant  and  his 
wife  had  come  to  Scotland.  He  is  writing  from  Minto  Street,  Edin- 
burgh, to  his  brother-iu-law,  Mr.  William  Hosack,  in  Jamaica,  and 
he  says:  "I  have  not  got  rid  of  my  complaint  as  yet,  and  still  find 
difficulty  in  walking  much,  and  was  obliged  to  forego  the  pleasures 
of  shooting,  on  which  I  had  so  much  set  my  heart.  This  country  i.s 
far  too  cold  for  a  person  not  having  the  right  use  of  his  limbs.  In 
fact  I  have  been  little  taken  with  anything,  and  would  go  to  Canada, 
Jamaica,  or  Australia,  without  hesitation.  I  enjoy  the  fresh  butter 
and  gooseberries."  Of  the  latter  —  that  is,  of  the  gooseberries  —  he 
proceeds  to  state  some  evil  consequences  which  he  had  suffered,  and 
then  he  says:  "Everything  else  is  as  good,  or  has  an  equivalent 
fully  as  good,  in  Jamaica.  My  mind  is  not  made  up  as  to  the  pur- 
chase of  an  estate.  Land  bears  too  high  a  value  in  proportion  to 
other  things  in  this  country,  owing  to  the  members  of  the  House  of 
Commons  and  of  Lords  being  all  landowners,  and  having  thereby 
received  greater  legislative  protection.  The  reform  voters  begin 
to  see  this,  and  as  soon  as  the  character  of  the  House  of  Commons 
changes  enough  (and  it  is  changiug  prodigiously)  the  value  of  land 


30  BELL   V.    KENNEDY.  [CHAP.    U, 

will  come  to  its  true  value  in  the  State.  I  have  formed  these  views 
since  I  came  home,  and  have  lost  in  proportion  my  land-buying 
mania."  Thus,  having,  as  I  have  stated,  a  domicile  by  birth  in 
Jamaica,  and  having  come  to  this  country  with  an  indeterminate 
view  as  to  what  property  he  should  become  the  purchaser  of,  writing 
three  months  afterwards,  he  says:  "I  have  been  little  taken  with 
anything,  and  would  go  to  Canada,  Jamaica,  or  Australia,  without 
hesitation."  Nothing  can  be  more  significant  as  to  the  absence  of 
any  determination  in  his  mind  to  make  Scotland  his  fixed  home,  and 
to  spend  the  remainder  of  his  days  there. 

I  come  to  the  27th  of  December,  1837,  when  the  appellant,  again 
writing  to  the  same  brother-in-law  in  Jamaica,  says:  "As  to  the 
country,  I  like  none  of  it.  I  have  not  purchased  an  estate,  and  not 
likely  to  do  so.  I  had  my  guns  repaired,  bought  a  pointer,  pur- 
chased the  shooting  of  an  estate  for  £10,  have  never  been  there,  nor 
fired  a  shot  anywhere  else.  Have  had  a  fishing  rod  in  my  hands  only 
for  two  hours,  and  caught  nothing.  I  bought  a  horse,  and  might  as 
well  have  bought  a  bear.  He  bites  so,  it  would  have  been  as  easy 
to  handle  the  one  as  the  other.  I  exchanged  him  for  a  mare,  and, 
positively,  I  have  sent  her  to  enjoy  herself  in  a  farm  straw  yard, 
without  ever  having  been  once  on  her  back,  or  even  touched  her  in 
any  way."  Here,  again,  we  find  that  so  far  from  his  expressing  a 
liking  for  the  country  upon  better  acquaintance,  he  says  he  does  not 
like  it,  and  so  far  from  a  deteimination  to  purchase  an  estate  in 
Scotland  and  end  his  days  upon  it,  he  says,  "I  have  not  purchased, 
an  estate,  and  am  not  likely  to  do  so." 

Passing  over  three  months  more,  I  come  to  a  letter  dated  the  20th 
of  March,  1838,  by  Mrs.  Bell,  the  wife's  expressions  being  even 
more  significant  than  those  of  her  husband;  for  it  is  obvious  that 
she,  of  the  two,  was  more  inclined  to  settle  in  Scotland.  She  writes: 
"The  extreme  severity  of  the  winter  has  put  us  a  good  deal  out  of 
conceit  of  Scotland,  but  independent  of  that,  I  don't  find  the  satis- 
faction in  it  I  anticipated.  If  circumstances  permitted,  I  would  not 
mind  to  return  to  Jamaica,  though,  I  dare  say,  after  being  here  a 
few  years  I  might  not  like  it.  This  country  is  so  gloomy,  it  is  sadly 
depressing  to  the  spirits,  so  unlike  what  one  has  been  used  to  in 
dear,  lovely  Jamaica.  The  vile  pride  and  reserve  of  the  people  is 
here  too  great  a  source  of  annoyance.  A  man  is  not  so  much  valued 
on  the  manners  and  education  of  a  gentleman  as  on  the  rank  of  his 
great  grandfather  —  that  is  to  say,  among  a  certain  class.  You  will 
perceive  from  this  we  are  still  at  Number  9.  Bell  has  several  prop- 
erties in  view,  but  is  as  undetermined  about  where  we  may  settle  as 
when  he  left  Jamaica.  Next  week  he  goes  to  Ayrshire  to  look  at  an 
estate,  and  from  thence  to  Galloway  and  Dumfriesshire.  If  we  don't 
fix  very  soon  we  purpose  taking  a  furnished  house  in  the  country  for 
twelve  months."  Now,  the  whole  of  this  passage,  I  think,  is  of  con- 
siderable importance,  but  the  last  sentence  I  have  read  affords  a  key 


SECT.    I.]  BELL   V.   KENNEDY.  31 

which  may  be  useful  in  letting  us  into  the  design  of  the  spouses  in 
taking  the  furnished  house  of  Trochraigue.  The  interpretation  given 
by  this  letter  is,  that  it  was  equivalent  to  saying  that  they  had  not 
at  that  time  fixed  upon  a  residence. 

I  pass  on  for  two  months  more.  The  offer  which  in  the  interval  he 
had  made  for  Enterkine  had  been  refused.  The  furnished  house  at 
Trochraigue  had  been  taken„  The  appellant  and  his  wife  were  upon 
the  eve  of  taking  possession  of  it  on  the  1st  of  June,  1838;  and  on 
the  28th  of  May,  1838,  the  appellant  writes  to  his  brother-iu  law  in 
Jamaica:  "I  have  taken  a  country  house  at  Trochrigg."  "1  leave 
this  for  it  on  the  1st  of  June.  It  is  situated  two  miles  from  Girvan, 
which  is  twenty  miles  west  of  Ayr,  on  the  seacoast.  Therefore  for 
the  next  twelve  months  you  can  address  to  me  Trochrigg,  near 
Girvan,  Ayrshire,  Scotland.  The  offer  which  I  wrote  you  I  have 
made  for  Enterkine  1  received  no  answer  to  until  sixteen  days  after, 
and  then  I  got  an  answer  stating  they  had  a  better  offer.  Of  this  I 
believe  as  much  as  I  like,  for  I  see  it  advertised  again  in  the  Satur- 
day's paper.  I  do  not  know  whether  I  shall  make  anything  of  this 
estate  for  the  present,  and  I  care  not.  It  is  still  very  cold,  and  if 
I  do  not  make  a  purchase  in  the  course  of  this  year,  I  perhaps  will 
take  a  trip  next  summer  to  the  south  of  France,  and  see  whether  I 
don't  find  it  warmer  there."  That  is  to  say  in  the  next  summer, 
which  would  be  the  summer  of  1839,  he  was  in  expectation  that  Mrs. 
Bell  and  his  family  would  be  able  to  accompany  him  to  "take  a  trip 
to  the  south  of  France,  and  see  whether  he  did  not  find  it  warmer 
there,"  not,  as  it  seems  to  me,  for  the  purpose  of  enjoying  a  tempo- 
rary sojourn,  but,  if  he  found  it  a  more  agreeable  climate,  for  the 
purpose  of  making  it  his  permanent  residence. 

There  is  only  one  other  passage  to  which  I  would  ask  your  Lord- 
ships' attention.  It  is  in  a  letter  written  one  month  afterwards, 
while  Mr.  and  Mrs.  Bell  were  at  Trochrigg,  on  the  16th  of  June. 
Writing  to  Mr.  "William  Hosack,  the  appellant  says:  "  There  are 
several  gentlemen's  seats  in  the  neighborhood,  but  none  of  them 
reside  in  them.  We  will  probably  have  only  three  or  four  acquaint- 
ances, and  shall  be,  in  that  respect,  much  the  same  as  in  Jamaica. 
We  must,  however,  make  the  most  of  it  for  twelve  months,  in  the 
hope  that  during  that  time  I  may  be  able  to  find  some  estate  that  will 
be  suitable  for  me  as  a  purchase." 

I  find  nothing  after  this  material  in  the  correspondence  before  the 
death  of  Mrs.  Bell,  and  the  last  sentence  I  have  read  appears  to  me 
to  sum  up  and  to  describe  most  accurately  the  position  in  which  the 
appellant  was  at  Trochrigg;  he  was  there  in  the  hope  that,  during 
the  "twelve  months,"  he  might  be  able  to  find  some  estate  which 
might  be  suitable  to  him  for  purchase;  but  upon  that  contingency, 
as  it  seems  to  me,  depended  the  ultimate  choice  which  he  would 
make  of  Scotland,  or  some  other  country,  as  a  place  of  residence. 
If  his  hope  should  be  realized,  we  might  from  this  letter  easily  infer 


32  BELL   r.    KENNEDY.  [CHAP.    IL 

that  Scotland  would  become  his  home.  If  his  hope  should  not  be 
realized,  I  see  nothing  which  would  lead  me  to  think,  but  everything 
which  would  lead  me  to  doubt,  that  he  would  have  elected  to  remain 
in  Scotland  as  his  place  of  residence. 

It  appears  to  me,  on  the  whole,  upon  consideration  of  the  facts 
which  are  admitted  in  the  case,  and  the  parol  evidence,  and  the 
correspondence  to  which  1  have  referred,  that  so  far  from  the  respon- 
dents having  discharged  the  onus  which  lies  upon  them  to  prove  the 
adoption  of  a  Scotch  domicile,  they  have  eutirely  failed  iu  discharg- 
ing that  burden  of  proof,  and  that  the  evidence  leads  quite  in  the 
opposite  direction.  There  is  nothing  in  it  to  show  that  the  appel- 
lant's personal  status  of  domicile  as  a  native  and  an  inhabitant  of 
Jamaica  has  been  changed  on  coming  here  by  that  which  alone  could 
change  it,  his  assumption  of  domicile  iu  another  country.  I  am, 
therefore,  unfortunately  unable  to  advise  yon  to  concur  in  the  opin- 
ion of  the  Court  of  Session.  The  Lord  Ordinary  entertained  the 
opinion  that  the  appellant,  from  the  first  moment  of  his  arrival  in 
Scotland,  and  of  his  sojourn  at  Mrs.  Hosack's  house,  had  acquired  a 
Scotch  domicile.  But  nothing  could  be  more  temporary  —  nothing 
more  different  from  the  state  of  things  that  would  lead  to  the  con- 
clusion of  the  assumption  of  a  Scotch  domicile  —  than  the  circum- 
stances under  whicli  that  sojourn  took  place.  Lord  Cowan,  in 
delivering  the  opinion  of  the  Court  of  Session,  appears,  on  the  other  . 
hand,  to  have  thought  that  the  Scotch  domicile  was  not  acquired  at 
the  time  of  arrival  in  Scotland,  but  was  acquired  at  the  time  of  tak- 
ing possession  of  Trochrigg.  But  if  we  are  to  put  upon  the  occupa- 
tion of  Trochrigg  the  interpretation  which  the  appellant  himself  put 
upon  it  at  the  time,  so  far  from  its  being  an  assumption  of  a  Scotch 
domicile,  it  appears  to  me  to  have  borne  an  entirely  different  con- 
struction, and  to  have  been  a  temporary  place  of  sojourn,  in  order 
that  a  determination  might  be  arrived  at  in  the  course  of  the  sojourn 
as  to  whether  a  Scotch  domicile  should  or  should  not  ultimately  be 

acquired. 

There  is  one  passage  iu  the  judgment  of  the  Court  of  Session, 
delivered  by  Lord  Cowan,  to  which  I  must  ask  your  Lordships  more 
particularly  to  refer,  for  it  appears  to  me  to  afford  a  key  to  what  I 
think,  with  great  respect,  I  must  call  the  fallacious  reasoning  of  the 
judgment.  After  speaking  of  the  parol  evidence  giveii  by  the  appel- 
lant. Lord  Cowan  uses  these  words:  "For  after  all,  what  do  the 
statements^of  the  defender  truly  amount  to?  Simply  this,  that  prior 
to  September,  1838,  he  had  not  fixed  on  any  place  of  permanent  resi- 
dence, and  had  not  finally  made  up  his  mind  or  formed  any  fixed 
intention  to  settle  in  Scotland  before  he  bought  Enterkiue.  There 
is  no  statement  that  he  had  it  in  his  mind  to  take  up  his  residence 
elsewhere  than  in  Scotland."  If,  my  Lords,  I  read  these  words  cor- 
rectly, Lord  Cowan  appears  to  have  intimated  that  in  his  opinion  it 
would  not  bo  enough  to  find  that  the  appellant  had  not  fixed  on  any 


SECT.    I.]  BELL    V.    KENNEDY.  33 

place  of  permanent  residence  prior  to  September,  1838,  and  had  not 
decidedly  made  up  bis  mind  or  formed  a  fixed  intention  to  settle  in 
Scotland,  unless  proof  were  also  adduced  that  he  had  it  in  his  mind 
to  take  up  his  residence  elsewhere  than  in  Scotland.  I  venture  to 
think  that  would  be  an  entirely  fallacious  mode  of  reasoning,  and 
would  be  entirely  shifting  the  position  of  the  proof  v/hich  has  to  be 
brought  forward.  The  question,  as  it  seems  to  me,  is  not  whether 
he  had  made  up  his  mind  to  take  up  his  residence  elsewhere  than 
in  Scotland,  but  the  question  is,  had  he,  prior  to  September,  1838, 
finally  made  up  his  mind  or  formed  a  fixed  intention  to  settle  in 
Scotland.  Lord  Cowan  appears  to  admit  that  the  parol  evidence 
itself  would  show  that  that  had  not  been  done,  and  that  parol  evi- 
dence is,  in  my  mind,  fortified  and  made  very  much  more  emphatic 
by  the  evidence  of  the  correspondence  to  which  I  have  referred. 

I  have  humbly,  therefore,  to  advise  your  Lordships  to  assoilzie  the 
defender  from  the  conclusions  of  the  summons,  and  to  reverse  the  six- 
teen  interlocutors  which  have  been  pronounced  by  the  couit  below. 

Lord  Westbury.  My  Lords,  I  have  very  few  words  to  add  to 
what  has  been  already  stated  to  your  Lordships ;  and,  perhaps,  even 
those  are   not  quite  necessary. 

What  appears  to  me  to  be  the  erroneous  conclusion  at  which  the 
Court  of  Session  arrived  is  in  great  part  due  to  the  circumstance, 
frequently  lost  sight  of,  that  the  domicile  of  origin  adheres  until  a 
new  domicile  is  acquired.  In  the  argument,  and  in  the  judgments, 
we  find  constantly  the  phrase*  used  that  he  had  abandoned  his  native 
domicile.  That  domicile  appears  to  have  been  regarded  as  if  it  had 
been  lost  by  the  abandonment  of  his  residence  in  Jamaica.  Now, 
residence  and  domicile  are  two  perfectly  distinct  things.  It  is  nec- 
essary in  the  administration  of  the  law  that  the  idea  of  domicile 
should  exist,  and  that  the  fact  of  domicile  should  be  as(?ertained,  in 
order  to  determine  which  of  two  municipal  laws  may  be  invoked  for 
the  purpose  of  regulating  the  rights  of  parties.  We  know  very  well 
that  succession  and  distribution  depend  upon  the  law  of  the  domi- 
cile. Domicile,  therefore,  is  an  idea  of  law.  It  is  the  relation 
which  the  law  creates  between  an  individual  and  a  particular  locality 
or  country.  To  every  adult  person  the  law  ascribes  a  domicile,  and 
that_doaiicile  remaiaiS-hia-fix£d.,iittribute  u n t ij_n_npw  f^nrl  diffprPii t 
attribute  usurps  its  place.  Now  this  case  was  argued  at  the  bar  on 
the  footing,  that  as  soon  as  Mr.  Bell  left  Jamaica  he  had  a  settled 
and  fixed  intention  of  taking  up  his  residence  in  Scotland.  And  if, 
indeed,  that  had  been  ascertained  as  a  fact,  then  you  would  have  had 
the  animus  of  the  party  clearly  demonstrated,  and  the  factum^  which 
alone  would  remain  to  be  proved,  would  in  fact  be  proved,  or,  at 
least,  would  result  Immediately  upon  his  arrival  in  Scotland. 

The  true  inquiry,  therefore,  is.  Had  he  this  settled  purpose,  the 
moment  he  left  Jamaica,  or  in  course  of  the  voyage,  of  taking  up  a 


34  BEI.L    V.    KENNEDY.  [CHAP.    II. 

fixed  and  settled  abode  in  Scotland?  Undoubtedly,  part  of  the 
evidence  is  the  external  act  of  the  party ;  but  the  only  external  act 
we  have  here  is  the  going  down  with  his  wife  to  Edinburgh,  the 
most  natural  thing  in  the  world,  to  visit  his  wife's  relations.  We 
find  him  residing  in  Scotland  from  that  time;  but  with  what  animus 
or  intention  his  residence  continued  there  we  have  yet  to  ascertain. 
For  although  residence  may  be  some  small  j^^^^f^  f^^cie  proof  of 
domicile,  i^  is  by  no  means  to  be  inferred  from  the  fact  of  residence 
that  domicile  results,  even  although  you  do  not  find  that  the  party 
had  any  other  residence  in  existence  or  in  contemplation. 

I  take  it  that  Mr.  Bell  may  be  more  properly  described  by  words 
which  occur  in  the  Digest;  that  when  he  left  Jamaica  he  might  be  de- 
scribed as  qucerens,  quo  se  conferat,  ntque  ttbi  constituat  domicilium. 
Dio-.  lib.  50  t.  1,  27.    Where  he  was  to  fix  his  habitation  was  to  him  at 
thai;  time  a  thing  perfectly  unresolved;  and,  as  appears  from  the  letters 
which  your  Lordships  have  heard,  that  irresolution,  that  want  of  settled 
fixity  of  purpose,  certainly  continued  down  to  the  time  when  he  actu- 
ally became  the  purchaser  of  Enterkine.     But  the  punctum  tewporis 
to  which  our  inquiries  are  to  be  directed  as  to  Mr.  Bell's  intention 
is  of  an  earlier  date  than  that.     The  question  is,  had  he  any  settled 
fixed  intention  of  being  permanently  resident  in  Scotland  on  the  28th 
of  Septem.ber,  1838?     I  quite  agree  with  an  observation  which  was 
made  in  the  Court  of  Session,  that  the  letters  are  the  best  evidence 
in  the  case.     To  those  letters   your  Lordships'  attention  has   been 
directed,  and  whether  you  refer  to  the  language  of  the  wife's  letters, 
or  look  exclusively  at  the  language  of  the  husband's  letters  written 
to  his  familiar  friends  or  his  relatives  whom  he  had  left  in  Jamaica, 
it  is  impossible  to  predicate  of  him  that  he  was  a  man  who  had  a 
fixedaud_3ttleiLi^'P0se  to  niake  Scotland  his  futurej)lace^of^resi: 
dence,  to  set  up  his  tabernacle  there,  to  m.ake  it  Tiis  future  home. 
And  unless  you  are  able  to  show  that  with   peTfecrcTearness  and 
satisfaction  to  yourselves,  it  follows  that  the  domicile  of  origin  con 
tinues.     And  therefore  I  think  we  can  have  no  hesitation  in  answer- 
ing the  question  where  he  was  settled  on  the  28th  of  September.     It 
must  be  answered  in  this  way;    he  was  resident   in   Scotland,  but 
without  the  animus  manendi,  and  therefore  he  still  retained  his  domi- 
cile of  origin. 

I^Iy  Lords,  it  is  matter  of  deep  regret,  that  although  it  might 
have  been  easily  seen  from  the  commencement  of  this  cause  that  it 
turned  entirely  upon  this  particular  question,  yet  we  find  that  ten 
years  of  litigation  have  taken  place,  with  enormous  expense,  and  an 
enormous  amount  of  attention  to  a  variety  of  other  matters,  which 
would  have  been  wholly  unnecessary  if  judicial  attention  had  been 
concentrated  upon  this  question,  which  alone  was  sullicient  for  the 
decision  of  the  case. 

Pollock,  C.   B.,  In  Attorney-General  v.  Pottinger,   6  H.  &  N. 
733,  744  (1861).     The  question  is,  whether  Sir  Henry  Pottinger  at  the 


SECT.    I.]  PUTNAM    V.   JOHNSON.  35 

time  of  his  decease  was  domiciled  in  England  or  in  India.  .  .  . 
The  only  doubt  arises  from  this,  that  he  continued  in  the  service  of 
the  East  India  Company,  and  might  have  been  called  upon  at  any 
time  to  serve  in  India.  In  Hodgson  v.  De  Beauchesne,  12  Moo.  P.  C. 
285,  which  was  cited  to  establish  that  because  an  Indian  officer  con- 
tinued liable  to  be  called  upon  to  serve  in  India  he  could  not  acquire 
an  English  domicile,  the  court  decided  that  such  circumstances  con- 
stituted a  strong  reason  against  such  an  officer  acquiring  a  French 
domicile.  But  the  distinction  between  a  foreign  and  an  English  domi- 
cile is  pointed  out  in  the  judgment,  and  Lord  Cranworth  in  the  course 
of  Dr.  Phillimore's  reply,  said  :  ''  If  the  deceased  had  gone  to  Scotland 
on  furlough,  and  resided  there  as  long  as  he  did  in  France,  it  would  be 
difficult  to  say  that  he  had  not  acquired  a  Scotch  domicile."  Applying 
that  to  this  case,  I  think  that,  notwithstanding  Sir  Henry  Pottinger 
continued  in  the  Indian  army,  his  purchase  of  a  dwelling-house  in 
Eaton  Place,  his  continuing  to  hold  it  whilst  absent  from  England,  his 
return  to  it  as  his  place  of  residence  and  his  home,  and  his  reference 
to  it  in  his  will  as  his  residence,  abundantly  establishes  his  English 
domicile.^ 


PUTNAM  V.   JOHNSON. 
Supreme  Judicial  Court  of  Massachusetts.     1813. 

[Reported  10  Massachusetts,  488.] 

Case  against  the  selectmen  of  Andover  for  refusing  to  insert  plain- 
tiff's name  on  the  voting-list  of  the  town.^  At  the  trial  of  the  action, 
which  was  had  upon  the  general  issue  before  Sewall,  J.,  at  the  Sit- 
tings here  after  this  term,  a  verdict  was  found  for  the  plaintiff,  sub- 
ject to  the  opinion  of  the  court  upon  certain  facts  agreed  by  the 
parties,  and  certain  evidence  given  at  the  trial,  and  reported  by  the 
judge  who  presided  thereat. 

It  was  admitted  that  the  plaintiff  was  born  in  Danvers,  on  the  24th 
day  of  November,  1786;  that  he  resided  there,  in  his  father's  fam- 
ily, until  he  entered  Dartmouth  College,  in  August,  1805;  that  he 
was  graduated  at  the  said  college  in  1809;  that  he  then  went  to 
Salem,  and  resided  there  as  a  student  at  law  until  the  13th  of  April, 

1812,  when  he  went  to  Andover;  that  he  resided  in  Andover  during 
the  vacation  of  six  weeks  [in  the  theological  seminary]  in  May  and 
June,  1812,  and  of  the  vacation  of  six  weeks  in  the  autumn  of  that 
year  he  spent  about  half  at  his  father's  house  in  Danvers,  and  in 
visits  to  different  places;  that  he  did,  on  the  first  Monday  of  April, 

1813,  request  the  defendants  to  insert  his   name  upon  the  list  of 

1  Ace.  Mooar  v.  Harvey,  128  Mass.  219. 

In  Hamilton  v.  Dallas,  1  Cli.  D.  257  (1875),  it  was  held  that  a  British  peer,  though 
a  member  of  the  House  of  Lords,  may  acquire  a  domicile  in  France  —  Ed. 

*  This  short  statement  is  substituted  for  the  declaration,  given  by  the  Reporter. 
—  Ed. 


36  PUTNAM    V.    JOHNSON.  [CHAP.    II. 

voters  iu  Andover,  for  senators;  that  they  refused  to  insert  it;  that 
at  the  said  meeting  he  offered  his  vote  for  senators,  and  the  defend- 
ants refused  to  receive  it;  that  he  possessed  sufficient  personal  estate; 
and  that  he  was  taxed  in  Salem  in  the  years  1810  and  1811,  and  paid 
his  taxes,  and  voted  in  said  town  after  March,  1810,  until  he  left 
that  place  in  April,  1812. 

The  judge  also  reported  that  Eleazar  Putnam,  the  father  of  the 
plaintiff,  testified  that  his  son,  since  he  left  college,  had  received  no 
support  from  him,  or  any  assistance  except  in  the  way  of  credit  to 
him,  and  was  not  of  the  father's  family,  but  separated,  and,  as  the 
father  believed,  was  upon  the  charity  foundation  at  Andover,  and 
that  he  owned  some  real  estate.  Mark  Newman,  Esquire,  testified 
that  the  plaintiff  was  upon  the  charity  foundation  in  the  theological 
seminary  at  Andover;  that  students  in  divinity  on  that  foundation 
are  restricted  to  a  residence  of  three  years  before  they  are  entitled  to 
a  license  to  preach,  and  are  permitted  to  continue  their  residence 
there  afterwards;  that  the  residence  of  students  is  in  chambers,  as 
at  a  college,  with  board  in  commons;  that  he  had  not  known  of  any 
students  in  the  theological  institution  who  had  been  admitted  to  vote, 
and  that  they  had  not  taken  any  concern  in  town  affairs;  that  a  Mr. 
Scammon,  in  1812,  while  a  student,  claimed  a  right  to  vote,  and  was 
refused;  and  that  theological  students,  when  licensed  to  preach  and 
employed  as  candidates  for  the  ministry,  reside  and  make  their  home 
at  the  institution,  and  in  the  vacations  generally  go  from  thence,  but 
sometimes  continue  there. ^ 

Parker,  J.  The  plaintiff,  being  a  citizen  of  the  commonwealth, 
more  than  twenty-one  years  of  age,  and  of  competent  property,  is 
without  doubt  entitled  to  vote  somewhere  wdthin  the  State  for  State 
officers. 

By  the  facts  reported  in  this  case,  it  is  manifest  that  Andover  or 
Danvers  is  the  place  where  the  plaintiff  has  his  home,  within  the  true 
intent  of  the  constitution.  Although  he  was  born  in  Danvers,  and 
that  is  still  the  domicile  of  his  father,  yet  he  was  of  an  age  to  eman- 
cipate himself,  and  obtain  a  home  in  some  other  town.  He  went  to 
Andover,  and  had  resided  there  a  few  days  short  of  a  year,  previous 
to  the  election  in  April,  1813.  A  year's  residence  was  not  necessary 
to  entitle  him  to  vote  in  that  town;  it  was  sufficient  that  he  made 
that  his  home.  He  had  left  his  father's  family  several  years  before, 
and  had  become  a  resident  in  Salem,  where  he  Avas  taxed  and  per- 
mitted to  vote.  His  father  had  ceased  to  support  him  since  the  year 
1809,  before  which  time  he  was  also  of  age;  and  he  was  at  Salem, 
preparing  himself  for  an  independent  living,  until  the  spring  of 
1812,  wlien  he  removed  to  Andover,  to  pursue  his  theological  studies 
there,  which,  as  he  was  on  the  charitable  foundation,  required  a  reei- 
dence  of  three  years. 

'  Arguments  of  counsel  are  omitted.  —  Ed. 


SECT.    I.]  PUTNAM   V.   JOHNSON.  37 

Was  Andover,  then,  his  dwelling-place  or  home?  This  is  the 
question  now  to  be  solved.  It  is  manifest  that  Danvers  was  not; 
for  he  had  abandoned  it,  and  did  not  keep  up  his  connection  with  his 
father's  family,  as  was  the  case  of  Emmons  in  Granby  v.  Amherst, 
7  Mass.  1,  cited  in  the  argument.  He  could  not  vote  in  Danvers, 
for  his  home  was  not  there.  He  must,  then,  have  a  right  to  vote  in 
Andover,  or  be  subjected  to  a  temporary  disfranchisement,  in  conse- 
quence of  his  having  no  home  in  any  place. 

The  objection  most  insisted  on  by  the  counsel  for  the  defendants 
is,  that  the  plaintiff  did  not  go  to  Andover  with  an  intention  to 
remain  there;  but  merely  for  the  purpose  of  instruction,  and  there- 
fore that  he  could  not  exercise  any  of  his  civil  privileges  within  that 
town;  although  it  was  admitted  that  a  mechanic  or  day-laborer, 
otherwise  qualified,  making  Andover  his  home,  by  residing  and 
dwelling  there,  would  be  a  legal  voter  there. 

A  residence  at  a  college  or  other  seminary^,  for  the  purpose  of 
instruction,  would  not  confer  a  right  to  vote  in  the  town  where  such 
an  institution  exists,  if  the  student  had  not  severed  himself  from  his 
father's  control,  but  resorted  to  his  house  as  a  home,  and  continued 
under  his  direction  and  management.  But  such  residence  will  give 
a  right  to  vote  to  a  citizen  not  under  pupilage,  notwithstanding  it 
may  not  be  his  expectation  to  remain  there  forever. 

The  definition  of  domicile,  as  cited  from  Vattel  by  the  counsel  for 
the  defendants,  is  too  strict,  if  taken  literally,  to  govern  in  a  ques- 
tion of  this  sort;  and,  if  adopted  here,  might  deprive  a  large  portion 
of  the  citizens  of  their  right  of  suffrage.  He  describes  a  person's 
domicile  as  the  habitation  fixed  in  any  place,  with  an  intention  of 
always  staying  there.  In  this  new  and  enterprising  country,  it  is 
doubtful  whether  one  half  of  the  young  men,  at  the  time  of  their 
emancipation,  fix  themselves  in  any  town  with  an  intention  of  always 
staying  there.  They  settle  in  a  place  by  way  of  experiment,  to  see 
whether  it  will  suit  their  views  of  business  and  advancement  in  life; 
and  with  an  intention  of  removing  to  some  more  advantageous  posi- 
tion if  they  should  be  disappointed.  Nevertheless,  they  have  their 
home  in  their  chosen  abode  while  they  remain.  Probably  the  mean- 
ing of  Vattel  is,  that  the  habitation  fixed  in  any  place,  without  any 
present  intention  of  removing  therefrom,  is  the  domicile.  At  least, 
this  definition  is  better  suited  to  the  circumstances  of  this  country. 

But  several  cases  have  been  cited  from  our  own  reports,  which  are 
supposed  to  be  analogous  to  the  case  at  bar,  in  which  the  settlement 
of  paupers  has  been  decided  upon  moi'e  strict  principles  than  are  now 
suggested.  The  case  of  Granby  v.  Amherst  is  the  strongest;  and  it 
is  manifest  that  there  is  nothing,  even  in  that  case,  which  contradicts 
the  principles  now  advanced.  The  pauper  there  left  Belchertown 
and  went  to  Dartmouth  College,  merely  for  the  purpose  of  education. 
He  was  under  age  while  at  college,  until  a  few  months  before  he  was 
graduated.     He  passed  all  his  vacations  in  Belchertown,  he  had  a 


38  ABINGTON    V.   NORTH   BRIDGE  WATER.  [CHAP.    H 

freehold  there,  and  he  returned  to  that  place  as  soon  as  he  had  taken 
his  degree.  It  was  very  properly  held  that,  under  these  circum- 
stances, he  had  not  changed  his  domicile  by  going  to  Dartmouth 
College,  and  remaining  there  four  years. ^ 

But  the  decisions  of  settlement  cases  cannot  have  much  influence 
on  questions  of  political  privileges.  In  the  former  cases,  there  is  a 
conflict  between  two  corporations  on  a  subject  of  property;  and  they 
must  be  determined  strictly  according  to  the  established  rules  of 
property.  The  objects  intended  to  be  secured  by  the  constitutional 
limitation  of  the  right  of  suffrage  to  the  town  in  which  the  voter  has 
his  home,  were  opportunity  to  ascertain  the  qualifications  of  the 
voter,  and  the  prevention  of  fraud  upon  the  public  by  multiplying 
the  votes  of  the  same  person.  The  plaintiff  had  lived  long  enough 
in  Andover  to  give  the  selectmen  the  means  of  scrutinizing  his 
claims ;  and  there  was  no  other  place  where  he  could  have  a  pretence 
for  voting. 

Further,  a  citizen  may  well  have  his  home  in  one  town,  with  all 
the  privileges  of  an  inhabitant,  and  yet  have  his  legal  settlement  in 
another  town.  For  instance,  if  he  should  reside  four  years  in  a 
town,  own  and  occupy  real  property  there,  gain  a  livelihood  there  for 
himself  and  his  family,  without  any  intention  of  removing,  he 
migh^,  notwithstanding,  be  removed  to  the  place  of  his  lawful  settle- 
ment, in  case  he  should  become  chargeable.  But  it  would  be  hard  to 
say  he  had  no  home  there,  that  he  did  not  dwell  there,  and  therefore 
that  he  should  not  be  permitted  to  vote  there. 

We  are  all  of  opinion  that  the  plaintiff's  case  is  well  made  out,  and 
that  judgment  must  be  entered  on  the  verdict.^ 


ABINGTON  V.    NORTH  BRIDGEWATER. 

Supreme  Judicial  Coukt  of  Massachusetts.     1810. 

[Reported  23  Pickerixg,  170.] 

SiiAW,  C.  J.,  drew  up  the  opinion  of  the  court. ^  The  question  of 
Ebenezer  Hill's  settlement  depends  upon  tliis,  whether  he  was  an  in- 
habitant of  Nortli  Bridgewater  before  the  10th  of  April,  17G7.  If 
his  house  or  place  of  residence  was  in  that  town,  he  acquired  a  set- 
tlement there,  and  the  defendants  are  liable,  otherwise  not. 

In  the  several  provincial  statutes  of  1G92,  1701,  and  1767  upon  this 
subject,  the  terms  "coming  to  sojourn  or  dwell,"  "being  an  inhab- 
itant," "residing  and  continuing  one's  residence,"  "coming  to  reside 

1  Ace.  Vanderpoel  v.  D'Hanlon,  53  la.  246  ;  Fr}-e'3  Election,  71  Pa.  302.  —  Ed. 
»  Ace.  Sanders  v.  Getchell,  76  Me.  158  ;  Hicks  v.  Skinner,  72  N.  C.  1. 
Residence  for  voting  means  actual  domicile.     Dennis  v.  S.,  17  Fla.  389.  —  Ed. 
•  The  opinion  only  is  given  :  it  sufficiently  states  the  case.  —  lio. 


SECT.   I.]  ABINGTON    V.    NORTH   BRIDGEWATER.  ^9 

and  dwell,"  are  frequently  and  variously  used,  and,  we  think,  they  are 
used  indiscriminately,  and  all  mean  the  same  thing,  namely,  to  desig- 
nate the  place  of  a  person's  domicile.  This  is  defined  in  the  Consti- 
tution, c.  1,  §  1,  for  another  purpose,  to  be  the  place  "where  one 
dwelleth  or  hath  his  home." 

The  fact  of  domicile  is  often  one  of  the  highest  importance  to  a 
person;  it  determines  his  civil  and  political  rights  and  privileges, 
duties  and  obligations;  it  fixes  his  allegiance;  it  determines  his  bel- 
ligerent and  neutral  character  in  time  of  war;  it  regulates  his  personal 
and  social  relations  whilst  he  lives,  and  furnishes  the  rule  for  the 
disposal  of  his  property  when  he  dies.  Yet  as  a  question  of  fact, 
it  is  often  one  of  great  difticulty,  depending  sometimes  upon  minute 
shades  of  distinction,  which  can  hardly  be  defined.  It  seems  difficult 
to  form  any  exact  definition  of  domicile,  because  it  does  not  depend 
upon  any  single  fact,  or  precise  combination  of  circumstances.  If 
we  adopt  the  above  definition  from  the  Constitution,  which  seems 
intended  to  explain  the  matter  and  put  it  beyond  doubt,  it  will  be 
found,  on  examination,  to  be  only  an  identical  proposition,  equivalent 
to  declai-ing,  that  a  man  shall  be  an  inhabitant  where  he  inhabits,  or 
be  considered  as  dwelling  or  having  his  home  where  he  dwells  or  has 
his  home.  It  must  often  depend  upon  the  circumstances  of  each 
case,  the  combinations  of  which  are  infinite.  If  it  be  said  to  be  fixed 
by  the  place  of  his  dwelling-house,  he  may  have  dwelling  houses  in 
different  places;  if  it  be  where  his  family  reside,  his  family  with 
himself  may  occupy  them  indiscriminately,  and  reside  as  much  in 
one  as  another;  if  it  be  where  he  lodges  or  sleeps  (pernocfaf),  he 
may  lodge  as  much  at  the  one  as  the  other;  if  it  be  his  place  of  busi- 
ness, he  may  have  a  warehouse,  manufactory,  wharf,  or  other  place  of 
business,  in  connection  with  his  dwelling-house  in  different  towns. 
See  Lyman  v.  Fiske,  17  Pick.  231.  But  without  pursuing  this  gen- 
eral view  further,  to  show  that  it  is  difficult,  if  not  impossible,  to  lay 
down  any  general  rule,  on  account  of  the  very  diversified  cases  which 
may  be  supposed,  yet  it  will  generally  be  found  in  practice,  that 
there  is  some  one  or  a  few  decisive  circumstances  which  will  deter- 
mine the  question. 

In  coming  to  the  inquiry  in  each  case,  two  considerations  must  be 
kept  steadily  in  view,  and  these  are,  — 

1.  That  every  person  must  have  a  domicile  somewhere;  and 

2.  That  a  man  can  have  only  one  domicile,  for  one  purpose,  at  one 
and  the  same  time. 

Every  one  has  a  domicile  of  origin,  which  he  retains  until  he  ac- 
quires another;  and  the  one  thus  acquired  is  in  like  manner  retained. 

The  supposition,  that  a  man  can  have  two  domiciles,  would  lead  to 
the  absurdest  consequences.  If  he  had  two  domiciles  within  the 
limits  of  distant  sovereign  States,  in  case  of  war,  what  would  be  an 
act  of  imperative  duty  to  one,  would  make  him  a  traitor  to  the  other. 
As  not  only  sovereigns,  but  all  their  subjects,  collectively  and  indi- 


40  AEINGTON    I'.    KORTH    BlilLiGEWxVTER.  [CHAP.   IL 

vidually,  are  put  into  a  state  of  hostility  by  war,  be  would  become 
an  enemy  to  himself,  and  bound  to  commit  hostilities  and  afford  pro- 
tection to  the  same  persons  and  property  at  the  same  time. 

But  without  such  an  extravagant  supposition,  suppose  he  were 
domiciled  within  two  military  districts  of  the  same  State,  he  might 
be  bound  to  do  personal  service  at  two  places,  at  the  same  time ;  or 
in  two  counties,  he  would  be  compellable,  on  peril  of  attachment, 
to  serve  on  juries  at  two  remote  shire  towns;  or  in  two  towns,  to  do 
watch  and  ward  in  two  different  places.  Or,  to  apply  an  illustration 
from  the  present  case.  By  the  provincial  laws  cited,  a  man  was  liable 
to  be  removed  by  a  warrant  to  the  place  of  his  settlement,  habitancy, 
or  residence,  for  all  these  terms  are  used.  If  it  were  possible  that 
he  could  have  a  settlement  or  habitancy  in  two  different  towns  at  the 
same  time,  it  would  follow  that  two  sets  of  civil  officers,  each  acting 
under  a  legal  warrant,  would  be  bound  to  remove  him  by  force,  the 
one  to  one  town,  and  the  other  to  another.  These  propositions, 
therefore,  that  every  person  must  have  some  domicile,  and  can  have 
but  one  at  one  time,  for  the  same  purpose,  are  rather  to  be  regarded 
as  postulata  than  as  propositions  to  be  proved.  Yet  we  think  they 
go  far  in  furnishing  a  test  by  which  the  question  may  be  tried  in 
each  particular  case.  It  depends  not  upon  proving  particular  facts, 
but  whether  all  the  facts  and  circumstances  taken  together,  tending 
to  show  that  a  man  has  his  home  or  domicile  in  one  place,  over- 
balance all  the  like  proofs,  tending  to  establish  it  in  another;  such 
an  inquiry,  therefore,  involves  a  comparison  of  proofs,  and  in  mak- 
ing that  comparison,  there  are  some  facts  which  the  law  deems 
decisive,  unless  controlled  and  counteracted  by  others  still  more 
stringent.  The  place  of  a  man's  dwelling-house  is  first  regarded,  in 
contradistinction  to  any  place  of  business,  trade,  or  occupation.  If 
he  has  more  than  one  dwelling-house,  that  in  which  he  sleeps  or 
passes  his  nights,  if  it  can  be  distinguished,  will  govern.  And  we 
think  it  settled  by  authority,  that  if  the  dwelling-house  is  partly  in 
one  place  and  partly  in  another,  the  occupant  must  be  deemed  to  dwell 
in  that  town  in  which  he  habitually  sleeps,  if  it  can  be  ascertained. 

Lord  Coke,  in  2  Inst.  120,  comments  upon  the  statute  of  Marl- 
bridge  respecting  courts  leet,  in  which  it  says,  that  none  shall  be 
bound  to  appear,  nisi  in  ha/ivis  uhi  fuerunt  conversant I's  ;  which  he 
translates,  "but  in  the  bailiwicks,  where  they  be  dwelling."  His 
Lordship's  comment  is  this:  "If  a  man  have  a  house  within  two  leets, 
he  shall  be  taken  to  be  conversant  where  his  bed  is,  for  in  that  part 
of  the  house  he  is  most  conversant,  and  here  conversant  shall  be 
taken  to  be  most  conversant."  This  passage,  at  first  blush,  might 
seem  to  imply  that  the  entire  house  was  within  two  leets.  But  no 
man  can  be  of  two  leets.  2  Doug.  588;  2  Hawk.  P.  C.  c.  10,  §  12. 
Indeed,  the  whole  passage,  taken  together,  obviously  means,  a  house 
partly  within  one  leet  and  partly  within  another;  otherwise,  the  bed 
would  be  within  the  two  leets,  as  well  as  the  house. 


SECT.   I.]  ABINGTON   V.   NORTH   BRIDGEWATER.  41 

It  is  then  an  authority  directly  in  point  to  show,  that  if  a  man  has 
a  dwelling-house,  situated  partly  within  one  jurisdiction  and  partly 
in  another,  to  one  of  which  the  occupant  owes  personal  service,  as  an 
inhabitant,  he  shall  be  deemed  an  inhabitant  within  that  jurisdiction 
within  the  limits  of  which  he  usually  sleeps. 

The  same  principle  seems  to  have  been  recognized  in  other  cases, 
mostly  cases  of  settlement,  depending  on  domicile.  Rex  v.  St. 
Olaves,  1  Str.  51;  Colechurch  v.  Radcliffe,  1  Str.  60;  Rex  v.  Brigh- 
ton, 5  T.  R.  188;  Rex  v.  Ringwood,  1  Maule  &  Selw.  381. 

I  am  aware  that  the  same  difficulty  may  arise  as  before  suggested, 
which  is,  that  the  occupant  may  not  always,  or  principall}",  sleep  in 
one  part  of  his  house,  or  if  he  sleeps  in  one  room  habitually,  the 
dividing  line  of  the  towns  may  pass  through  the  room  or  even  across 
his  bed.  This,  however,  is  a  question  of  fact  depending  upon  the 
proofs.  When  such  a  case  occurs,  it  may  be  attended  by  some  other 
circumstance  decisive  of  the  question.  If  the  two  principles  stated 
are  well  established,  and  we  think  they  are,  they  are,  in  our  opinion, 
sufficient  to  determine  the  present  case.  It  becomes,  therefore,  neces- 
sary to  see  what  were  the  facts  of  this  case,  and  the  instructions  iu 
point  of  law  upon  which  it  was  left  to  the  jury. 

The  plaintiffs  contended  that  two  monuments  pointed  out  by  them 
were  true  and  genuine  monuments  of  the  Colony  line,  and  if  so,  a 
straight  line  drawn  from  one  to  the  other  would  leave  the  house 
wholly  in  North  Bridgewater,  and  the  jury  were  instructed,  if  they 
so  found,  to  return  a  verdict  for  the  plaintiffs.  But  the  jury  stated, 
on  their  return,  that  on  this  point  they  did  not  agree,  and  therefore 
that  part  of  the  instruction  may  be  considered  as  out  of  the  case.  It 
is  therefore  to  be  taken  that,  in  point  of  fact,  the  line  ran  through 
the  house,  leaving  a  small  part  in  Randolph  and  a  large  part  in  North 
Bridge-water.  In  reference  to  this,  the  jury  were  instructed,  that 
if  that  line  would  leave  a  habitable  part  of  the  house  iu  Randolph, 
the  verdict  should  be  for  the  defendants;  otherwise,  for  the  plaintiffs. 
The  jury  were  also  directed  to  find,  specially,  whether  the  beds  of  the 
family  in  which  they  slept,  and  the  chimney  and  fireplace,  were  or 
•were  not  iu  North  Bridgewater.  The  jury  found  a  verdict  for  the 
plaintiffs,  which  in  effect  determined,  in  point  of  fact,  that  the  line 
did  run  through  the  house,  leaving  a  small  part  in  Randolph,  that  the 
beds  and  fireplaces  of  the  house  were  on  the  North  Bridgewater  side 
of  the  line,  and  that  there  was  not  a  habitable  part  of  the  house  in 
Randolph. 

What  was  the  legal  effect  of  this  instruction  to  the  jury?  To 
understand  it,  we  must  consider  what  was  the  issue.  The  burden  of 
proof  was  upon  the  plaintiffs,  to  prove  that  Hill  had  his  settlement 
in  North  Bridgewater.  But  proving  that  he  had  a  dwelling-house, 
standing  partly  in  North  Bridgewater  and  partly  in  Randolph,  would 
leave  it  wholly  doubtful  whether  he  had  his  domicile  in  the  one  or 
the  other,  provided  that  the  line  passed  the  house  iu  such  a  direction 


42  ABINGTON    V.    NORTH    BRIDGEWATER.  [CHAP.    II. 

as  that  either  would  have  been  sufficient  for  the  purpose  of  a  habita- 
tion; because  it  would  still  be  doubtful  whether  he  dwelt  upon  one  or 
the  other  side  of  that  line.  But  if  the  line  ran  in  such  a  direction  as  to 
leave  so  small  a  portion  on  one  side  that  it  could  not  constitute  a 
human  habitation,  then  the  position  of  the  dwelling  determined  the 
domicile.  In  any  other  sense,  we  see  not  how  the  correctness  of  the 
instruction  could  be  maintained.  If  the  term  "habitable  part  of 
the  house  "  was  intended  to  mean  a  portion  of  the  house  capable  of 
being  used  with  the  other  part  for  purposes  of  habitation,  and  the 
whole  constituting  together  a  place  of  habitation,  then  every  part  of 
the  house  capable  of  being  used  would  be  a  habitable  part.  The 
instruction  was,  that  if  a  habitable  part  was  in  Randolph,  the  occu- 
pant did  not  acquire  a  domicile  in  North  Bridgewater;  it  would  be 
equally  true  in  law,  that  if  a  habitable  part  was  in  North  Bridge- 
water,  he  did  not  acquire  a  domicile  in  Randolph.  If  the  term 
"habitable,"  then,  were  used  in  the  restricted  sense,  capable  of  being 
used  as  a  part,  and  not  as  the  whole  of  a  human  habitation,  the  in- 
struction would  amount  to  this,  that  living  ten  years  in  a  dwelling- 
house  divided  by  an  imaginary  line  into  parts,  both  of  which  are 
useful  and  capable  of  being  used  as  parts  of  a  dwelling-house,  the 
occupant  would  acquire  no  domicile.  But  this  is  utterly  inconsistent 
with  the  principles  of  domicile.  By  leaving  his  domicile  in  Abing- 
ton,  and  living  in  the  house  in  question,  Hill  necessarily  lost  his 
domicile  in  Abington,  and  necessarily  acquired  one  by  living  in  that 
house;  and  this  must  be  in  either  Randolph  or  Bridgewater,  and  not 
in  both.  It  may  be  impossible,  from  lapse  of  time  and  want  of 
evidence,  to  prove  in  which,  and  therefore  the  plaintiffs,  who«e  case 
depends  on  proving  affirmatively  that  it  was  in  North  Bridgewater, 
may  fail;  nevertheless  it  is  equally  true,  in  itself,  that  he  did  acquire 
a  domicile  in  one,  and  could  not  acquire  one  in  both  of  those  towns. 
Suppose  the  proof  were  still  more  deficient;  suppose  it  were  proved 
beyond  doubt,  that  Hill  lived  in  a  house  situated  on  a  cleared  lot 
of  one  acre  through  which  the  town  line  were  proved  to  run,  but  it 
were  left  uncertain  in  the  proof  on  which  part  of  the  lot  the  house 
was  situated.  It  would  be  true  that  he  lost  his  domicile  in  Abing- 
ton, and  acquired  one  in  Randolph  or  North  Bridgewater;  but  it  being 
entirely  uncertain  which,  the  plaintiffs  would  fail  of  proving  it  in 
North  Bridgewater,  and  therefore  could  not  sustain  their  action. 
So  if  the  line  ran  through  a  house  in  such  a  manner  that  either  side 
might  afford  a  habitation,  then  dwelling  in  that  house  would  not  of 
itself  prove  in  which  town  he  acquired  his  domicile,  though  he  must 
have  acquired  it  in  one  or  the  other.  In  this  sense  we  understand  the 
instruction  to  the  jury,  and  in  this  sense  we  think  it  was  strictly 
correct.  If  they  should  find  that  the  line  so  ran  through  the  house  as 
to  leave  a  part  capable,  of  itself,  of  constituting  a  habitation,  in 
Randolph,  then  dwelling  in  that  house,  though  partly  in  North  Bridge- 
water,  did  not  necessarily  prove  a  domicile  in  North  Bridgewater. 


SECT.   I.]  HAGGART   V.    MORGAN.  43 

Under  this  instruction  the  jury  found  a  verdict  for  the  plaintiffs, 
and  we  think  it  is  evident  from  this  verdict,  that  they  understood  the 
instruction  as  we  understand  it.  The  jury  find  that  one  corner  of 
the  house,  to  the  extent  of  two  feet  and  one  inch,  was  in  Randolph, 
but  that  no  habitable  part  of  the  house  was  in  Randolph;  not,  as  we 
think,  no  part  capable  of  being  used  with  the  rest  of  the  house  for 
the  purpose  of  habitation,  but  no  part  capable,  of  itself,  of  constitut- 
ing a  habitation;  from  which  they  draw  the  proper  inference,  that 
the  habitation  and  domicile,  and  consequently  the  settlement,  was  in 
North  Bridgewater. 

And  if  we  look  at  the  fact,  specially  found  by  the  jury,  we  are 
satisfied  that  they  drew  the  right  conclusion,  and  could  come  to  no 
other.  If  the  line  had  divided  the  house  more  equally,  we  think,  on 
the  authorities,  that  if  it  could  be  ascertained  where  the  occupant 
habitually  slept,  this  would  be  a  preponderating  circumstance,  and, 
in  the  absence  of  other  proof,  decisive.  Here  it  is  found,  that  all 
the  beds,  the  chimney  and  fireplace,  were  within  the  North  Bridge- 
water  side  of  the  line,  and  that  only  a  small  portion  of  the  house,  and 
that  not  a  side  but  a  corner,  was  within  the  Randolph  side,  and  that 
so  small  as  to  be  obviously  incapable  of  constituting  a  habitation  by 
itself.  We  think,  therefore,  that  the  instruction  was  right,  and  the 
verdict  conformable  to  the  evidence. 

Judgment  on  the  verdict  for  the  plaintiffs.^ 


HAGGART  v.  MORGAN. 

Court  of  Appeals,  New  York.     1851. 
[Reported  5  New  York,  422.] 

Gardiner,  J.^  The  defendants  at  the  trial  offered  to  prove  "that 
at  the  time  of  taking  out  the  attachment  mentioned  in  the  pleadings, 
and  at  the  time  of  the  giving  of  the  bond  in  suit,  the  debtor,  Brau- 
degee,  was  not  a  non-resident  of  the  city  of  New  York,  but  a  resi- 
dent. That  he  had  been  absent  about  three  years,  in  attending  a  law- 
suit at  New  Orleans,  and  returned  in  the  spring  of  1848."  The 
judge  excluded  the  evidence  on  the  grounds,  —  1st,  That  the  offer 
itself  showed  the  debtor  to  be  a  non-resident,  at  the  time  when  the 
attachment  issued,  within  the  spirit  of  the  act;  2d,  that  the  giving 
of  the  bond  to  discharge  the  attachment  prevented  him  from  show- 
ing such  fact;  and  the  defendant  excepted.  This  exception  presents 
the  only  question  in  the  cause  worthy  of  serious  consideration. 

The  ruling  of  the  judge  was  probably  correct  for  the  reasons  as- 
signed by  him.     In  the  matter  of  Thompson,  1  Wend.  45,  the  distinc 

1  Ace.  Judkins  v.  Reed,  48  Me.  386.  —  Ed. 

2  Part  of  the  opinion  only  is  given.  —  Ed. 


44  WILLIAMS    V.    ROXBURY.  [CHAP.    II. 

tion  was  taken  between  the  residence  of  the  debtor  and  his  domicile. 
It  was  there  held  that  his  residence  might  be  abroad,  within  the  spirit 
of  the  statute,  which  was  intended  to  give  a  remedy  to  creditors  whose 
debtors  could  not  be  served  with  process,  while  his  domicile  continued 
in  this  State.  In  Frost  v.  Brisbiu,  19  Wend.  14,  it  was  said,  in  a 
case  like  the  present,  that  actual  residence,  without  regard  to  the  dom- 
icile of  the  defendant,  was  within  the  contemplation  of  the  statute. 
It  was  part  of  the  offer  of  the  defendants  to  prove  that  the  debtor 
left  this  State  in  November,  1844,  and  returned  in  the  spring  of 
1848,  and  that  this  absence  of  three  years  and  a  half  was  necessary 
to  accomplish  the  business  in  which  he  was  engaged.  He  was  there- 
fore a  non-resident  when  the  attachment  was  issued,  within  these 
decisions,  although  domiciled  in  New  York.^ 


WILLIAMS  V.  ROXBURY. 
Supreme  Judicial  Court  of  Massachusetts.     1858. 

[Reported  12  Grai/,  21.] 

Action  of  contract  to  recover  back  the  amount  of  a  tax  assessed  on 
the  1st  of  May,  1856,  upon  personal  property  held  by  the  plaintiff  as 
trustee  under  the  will  of  John  D.  Williams,  for  the  benefit  of  Mrs. 
Sarah  A.  AV.  Bradlee,  formerly  Miss  Merry,  and  paid  under  protest. 
The  parties  agreed  that  if,  in  the  opinion  of  the  court,  upon  so  much 
of  the  following  facts  as  would  be  admissible  in  evidence,  Richards 
Bradlee,  her  husband,  was  a  resident  of  Brookline,  judgment  should 
be  rendered  for  the  plaintiff;  otherwise,  for  the  defendants. 

Richards  Bradlee  was  born  in  Brattleboro,  Vt.,  lived  there  until 
the  age  of  sixteen,  then  went  to  New  York,  and  there  remained  until 
after  he  became  of  age  in  the  spring  of  1855,  when  he  returned  to 
Brattleboro  for  the  purpose  of  finding  some  employment,  but  with  a 
view  of  going  to  the  West,  and,  after  passing  the  summer  in  Brattle- 
boro, went  to  St.  Louis  in  October  in  search  of  employment,  and 
entered  a  store  as  a  clerk,  but  under  no  contract  for  any  fixed  length 
of  time ;  and  in  the  following  winter  at  St.  Louis  met  Miss  Merry, 
who  resided  in  Roxbury,  and  became  engaged  to  marry  her.  He 
never   had   any    intention   of    making   Roxbury   his   residence.     In 

1  Ace.  Krone  v.  Cooper,  43  Ark.  547  ;  Ludlow  ?;.  Szold,  90  la.  175,  57  N.  W. 
676  (see,  however,  Cliuruh  v.  Grossman,  49  la.  444)  ;  Risewick  v.  Davis,  19  Md. 
82  ;  Alston  v.  Newcomer,  42  Miss.  186  ;  Johnson  v.  Smith,  43  Mo.  499  ;  Lon<?  v.  Ryan, 
30  Grat.  718.  Contra,  Wood  v.  Roeder,  45  Neb.  311,  G3  N.  W.  853;  Strattou  v. 
Bri^rham,  2  Sneed,  420.  Audsee  Ballinger  v.  Lautier,  15  Kan.  608;  Clark  v.  Likens, 
26  N.  J.  L.  207. 

A  similar  rule  prevails  as  to  "  settlement"  or  "residence  "  in  poor-law  eases.  Jef- 
ferson V.  Washington,  19  Me.  293  ;  North  Yarmouth  v.  West  Gardiner,  58  Me.  207. 
—  Ed. 


SECT.    I.]  OILMAN   V.    OILMAN.  45 

March,  1856,  he  hired  a  house  in  Brookline,  at  a  rent  to  begin  on  the 
1st  of  April,  for  the  residence  of  himself  and  his  wife;  visited  it  with 
her  several  times  to  set  up  the  furniture;  put  a  housekeeper  and 
servants  in  charge  of  it,  and  removed  into  it  his  and  Miss  Merry's 
movable  property.  They  were  married  in  Roxbury  on  the  9th  of 
April,  and  on  the  same  day  started  on  a  wedding  tour,  with  the  inten- 
tion of  returning,  not  to  Miss  Merry's  former  residence  in  Roxbury, 
but  to  the  furnished  house  in  Brookline,  and  on  the  2d  of  May  did 
return  to  that  house. 

C.  A.  Welch,  for  the  plaintiff. 

W.   Gast07i,  for  the  defendants. 

Shaw,  C.  J.  The  question  of  domicile  is  a  question  of  fact.  It 
is  a  question  of  comparison  of  facts.  Had  Mr.  Bradlee  previously 
had  a  clear,  fixed,  and  decided  domicile,  the  circumstances  would 
hardly  be  sufficient  to  show  an  acquisition  of  a  domicile  in  Brookline. 
But  when  we  compare  the  facts,  we  are  brought  to  the  opposite  result. 
Brattleboro  was  his  domicile  of  origin,  but  he  scarcely  ever  visited 
there,  and  soon  after  coming  of  age  went  to  St.  Louis,  and  was  there 
three  or  four  months  as  a  clerk,  and  there  formed  a  marriage  engage- 
ment with  Miss  Merry.  He  then  came  to  Massachusetts,  without 
an}^  intention  to  return  to  St.  Louis  with  his  wife.  But  he  came  to 
Massachusetts  to  fulfil  his  engagement.  He  acquired  no  domicile  at 
Roxbur3\  He  took  a  lease  of  a  house  in  Brookline  in  March,  the  rent 
to  commence  on  the  1st  of  April;  took  possession;  put  in  a  house- 
keeper; visited  the  house  for  the  purpose  of  putting  up  furniture, 
and  removed  all  his  own  and  his  wife's  property  to  it,  before  their 
marriage.  His  subsequent  absence  was  only  temporary;  he  left  on  a 
marriage  tour,  with  the  intention  to  return  to  live  in  Brookline,  and 
on  his  return  he  took  actual  possession  of  the  house  which  he  had 
hired.  Our  conclusion  is  that  upon  a  balance  of  all  the  facts  the 
domicile  was  in  Brookline,  and  that 

The  plaintiff  is  entitled  to  judgment.  * 


OILMAN   V.  GILMAN. 
Supreme  Judicial  Court  of  Maine.     1863. 

[Reported  52  Maine,  165.] 

Davis,  J.^     This  case  comes  before  us  upon   an    appeal    from   a 
decree  of  the  Probate  Court,  admitting  to  probate  and  allowing  the 

1  Ace.  Mann  v.  Clark,  33  Vt.  55. 

If  the  fact  of  residence  and  the  intention  to  stay  indefinitely  concur,  a  domicile  is 

gained  at  once,  for Jh owe ver  short  a  time  the  residence  or  the  intent  cmitinues.     Par- 

'sonTv.  Bangor,  61  Me.  457  ;  Stockton  v.  Staples,  66  Me.   197  ;  Thorndike  v.  Boston, 

1  Met.  242;  McConnell  v.  Kelley,  13S  Mass.  372  ;  Home  v.  Home,  9  Ired.  99.  — En 

2  The  opinion  only  is  given ;  it  sufficiently  states  the  case.  —  Ed. 


46  OILMAN    V.   GILMAN.  [CHAP.    H. 

last  will  and  testament  of  Nathaniel  Oilman.     It  was  proved  by  a 
copy,  the  original  being  beyond  the  jurisdiction  of  the  court. 

The  validity  of  the  will  is  not  questioned.  But  the  testator  left  a 
large  amount  of  property  in  the  city  of  New  York  as  well  as  in  this 
State;  and  the  will  has  been  proved  and  allowed  there,  on  proof  of 
its  execution  merely,  without  any  inquiry  in  regard  to  domicile.  The 
Surrogate  seems  to  have  assumed  that  jurisdiction  of  the  property 
conferred  original  jurisdiction  of  the  will,  whether  the  testator's 
domicile  was  there  or  elsewhere.  Even  if  his  decree  were  conclusive, 
which  cannot  be  admitted,  no  decree  was  made  by  him  upon  that 
point,  or  that  was  intended  to  settle  it,  as  a  judgment  binding  upon 
the  courts  of  any  other  State. 

If  the  domicile  of  the  testator,  at  the  time  of  his  death,  was  in  New 
York,  then  his  will  should  be  allowed  and  recorded  in  this  State  as  a 
foreign  will.  R.  S.,  c.  64,  §  8.  And,  in  that  case,  the  movable, 
property  in  this  State  would  be  disposed  of,  under  the  will, 
according  to  the  laws  of  the  State  of  New  York.  Jarman  on  Wills, 
2.  But  if  his  domicile  was  in  this  State,  then  the  Probate  Court  here 
has  original  jurisdiction,  and  our  laws  must  govern  the  construction 
of  the  will,  and  the  disposal  of  the  property.  Harrison  v.  Nickerson, 
9  Pet.  483;  Story's  Conflict  of  Laws,  §  481;  Bempde  v.  John- 
stone, 3  Ves.  199. 

It  would  be  well,  if  possible,  to  have  a  distinct  and  clear  idea  of 
what  we  mean  by  the  term  "domicile,"  before  applying  it  to  this 
case.  It  is  no  easy  matter,  however,  to  find  a  definition  that  has 
not  been  questioned.  Vattel  defines  it  as  "the  habitation  fixed  in 
any  place,  with  an  intention  of  always  staying  there."  This  is 
quoted  with  approbation  by  Savage,  C.  J.,  in  Thompson's  Case, 
1  Wend.  43;  and  in  the  case  of  Roberts'  Will,  8  Paige,  519,  Chan- 
cellor Walworth  adopts  it  in  substance.  "Domicile  is  the  actual 
residence  of  an  individual  at  a  particular  place,  with  the  (uiimus 
mafiendi,  or  a  fixed  and  settled  determination  to  remain  there  the 
remainder  of  his  life."  This  was  slightly  varied  in  Massachusetts, 
by  Wilde,  .J.,  in  Jennison  v.  Hapgood,  10  Pick.  77,  where  it  is  said 
to  be  a  residence  at  a  place  "accompanied  with  the  intention  to  re- 
main there  permanently,  or  at  least  for  an  indefinite  time."  Vattel's 
definition  was  questioned  by  Parker,  J.,  in  Putnam  v.  Johnson,  10 
Mass.  488,  in  which  "domicile"  is  said  to  bev'the  habitation  fixed  in 
any  place,  without  any  present  intention  of  removing  therefrom. "_^ 
This  form  has  been  recognized  in  this  State  as  more  nearly  correct 
than  any  of  the  others.     Warren  v.  Thomaston,  43  Maine,  406. 

All  definitions  of  this  kind  were  criticised,  with  much  force,  by 
Lord  Cani])bell,  C.  J.,  in  the  case  of  Regina  r.  Stapleton,  18  P^ng. 
Law  and  Kq.  301,  in  which  he  suggests  that,  if  one  should  go  to 
Australia,  with  the  intention  of  remaining  there  ten  years,  and  then 
returning,  his  domicile  could  hardly  be  said  to  continue  in  England. 
If  he  should  leave  his  family  in  England,  as  stated  in  the  supposed 


SECT.    I.]  OILMAN    V.    GILMAN.  47 

case,  his  domicile  might  properly  be  considered  there.  But,  if  a  citi- 
zen of  Maine,  with  his  family,  or  having  no  family,  should  go  to 
California,  to  engage  in  business  there,  with  the  intention  of  return- 
ing at  some  future  time,  definite  or  indefinite,  and  should  establish 
himself  there,  in  trade  or  agriculture,  it  is  difficult  to  see  upon  what 
principle  his  domicile  could  be  said  still  to  be  here.  His  residence 
there,  with  the  intention  of  remaining  there  a  term  of  years,  might 
so  connect  him  with  all  the  interests  and  institutions,  social  and 
public,  of  the  community  around  him,  as  to  render  it  not  only  proper, 
but  important,  for  him  to  assume  the  responsibilities  of  citizenship, 
with  all  its  privileges  and  its  burdens.  Such  residences  are  not 
strictly  within  the  terms  of  any  definition  that  has  been  given;  and 
yet  it  can  hardly  be  doubted  that  they  would  be  held  to  establish 
the  domicile. 

Other  definitions  have  been  given,  which,  though  more  general,  are 
better  adapted  to  determine  the  case  at  bar.  Thus  Story,  in  his 
Conflict  of  Laws,  says  that  one's  domicile  is  "his  true,  fixed,  perma- 
nent home,  and  principal  establishment,  to  which,  whenever  he  is 
absent,  he  means  to  return."  And,  in  Munroe  v.  IMunroe,  7  CI.  &. 
Fin.  877,  Lord  Cottenham  says  that,  to  effect  the  abandonment  of 
one's  domicile,  and  to  substitute  another  in  its  place,  "is  required  the 
choice  of  a  place,  actual  residence  in  the  place  chosen,  and  that  it 
should  be  the  principal  and  permanent  residence." 

That  the  testator's  original  residence  was  in  Waterville  is  ad- 
mitted. There  he  established  himself  in  business,  accumulated  prop- 
erty, was  married,  and  owned  a  house,  in  which,  either  continuously  or 
at  intervals,  he  resided,  with  his  family,  until  he  died  there  in  1859. 

It  nas  been  laid  down  as  a  maxim  on  this  subject,  that  every  person 
must  have  a  domicile  somewhere.  Abington  v.  North  Bridgewater, 
23  Pick.  170.  This  may  be  doubtful  in  its  application  to  some  ques- 
tions. A  life  may  be  so  vagrant  that  a  person  will  have  no  home  in 
any  city  or  town  where  he  can  claim  any  of  the  rights  or  privileges 
appertaining  to  that  relation.  But,  in  regard  to  questions  of  citizen- 
ship, and  the  disposition  of  property  after  death,  every  person  must 
have  a  domicile.  1  Amer.  Lead.  Cas.  725,  note.  For  every  one  is 
presumed  to  be  a  subject  of  some  government  while  living;  and  the 
law  of  some  country  must  control  the  disposition  of  his  property  upon 
his  decease.  It  is  therefore  an  established  principle  of  jurisprudence, 
in  regard  to  the  succession  of  property,  thattp,  domicile  once  acquired 
continues  until  a  new  one  is  established^  Therefore  the  testator's 
domicile  must  be  considered  in  Waterville,  for  the  purpose  of  settling 
his  estate,  unless  he  had  not  only  abandoned  it,  but  had  actually 
acquired  a  new  domicile  in  New  York. 

It  appears  in  evidence  that  he  commenced  business  in  New  York 
about  1831,  at  first  being  there  transiently;  that  in  1836  or  1837, 
having  been  married  a  second  time,  he  was  in  the  habit  of  spending 
considerable  time  there  with  his  family  at  the  Astor  House,  and  othef 


48  OILMAN    V.    OILMAN.  [CHAF.    II. 

hotels;  that  he  hired  a  house  there,  in  which  he  lived  portions  of  the 
year  from  1841  to  1844;  tiiat  he  bought  a  house  in  Brooklyn,  which 
he  occupied  at  intervals  from  1847  to  1852;  that  he  bought  a  lot  in 
Greenwood  Cemetery,  on  which  he  built  an  expensive  tomb;  that, 
after  1836,  his  principal  business  was  in  New  York,  and  that  several 
of  his  children  were  married  and  settled  there  in  business.  But  he 
never  disposed  of  his  house  in  Waterville;  he  always  kept  it  fur- 
nished, in  repair,  and  supplied  with  fuel ;  he  kept  a  horse  and  car- 
riage there;  he  generally  spoke  of  Waterville  as  his  home;  and,  with 
the  exception  of  one  or  two  years  (and  during  those  years  he  did  not 
keep  house  anywhere  else),  he  lived  in  his  house  there  a  portion  of 
the  year  with  his  family. 

A  person  may  have  two  places  of  residence,  for  purposes  of  busi- 
ness or  pleasure.  Thorndike  v.  Boston,  1  Met.  242;  Sears  r.  Boston, 
1  Met.  250.  But,  in  regard  to  the  succession  of  his  property,  as  he 
must  have  a  domicile  somewhere,  so  he  can  have  only  one.  Green  v. 
Green,  11  Pick.  410.  It  is  not  very  uncommon  for  wealthy  mer- 
chants to  have  two  dwelling-houses,  one  in  the  city  and  another  in  the 
country,  or  in  two  different  cities,  residing  in  each  a  part  of  the  year. 
In  such  cases,  looking  at  the  domestic  establishment  merely,  it  might 
be  ditficult  to  determine  whether  the  domicile  was  in  one  place  or  the 
other.  Bernal  v.  Bernal,  3  Mylne  &  Craig,  555,  note.  In  the  case 
of  Somerville  v.  Somerville,  5  Ves.  750,  788,  it  is  stated  as  a  general 
rule,  "tliat  a  merchant,  whose  business  is  in  the  metropolis,  shall  be 
considered  as  having  his  domicile  there,  and  not  at  his  country  resi- 
dence." But  no  such  rule  can  be  admitted.  The  cases  differ,  and 
are  distinguished  by  other  facts  so  important,  that  the  domicile  can- 
not always  be  held  to  be  in  the  city.  It  is  frequently  the  case  that 
the  only  real  home  is  in  the  country;  so  that,  while  some  such  mer- 
chants talk  of  going  into  the  country  to  spend  the  summer,  others, 
with  equal  propriety  speak  of  going  into  the  city  to  spend  the 
winter. 

If  any  general  rule  can  be  applied  to  such  cases,  we  think  it  is 
this:  that  the  domicile  of  origin,  or  the  previous  domicile,  shall  pre- 
vail. This  is  in  accordance  with  the  general  doctrine,  that  the  forum 
oriijhics  remains  until  a  new  one  is  acquired.  3  Kent,  431;  Kilburn 
V.  Bennett,  3  Met.  199;  Moore  v.  Wilkins,  10  N.  H.  455;  Hood's 
Case,  21  Penn.  106.  And  this  would  generally  be  in  harmony  with 
the  other  circumstances  of  each  case.  If  the  merchant  was  originally 
from  the  country,  and  he  keeps  up  his  household  establishment  there, 
his  residence  in  the  city  will  be  likely  to  have  the  characteristics  of 
a  temporary  abode.  "While,  if  his  original  domicile  was  in  the  city, 
and  lie  purchases  or  builds  a  country  house  for  a  place  of  summer 
resort,  he  will  not  be  likely  to  establish  any  permanent  relations  with 
the  people  or  the  institutions  of  the  town  in  which  it  is  located. 

If  we  apjily  this  rule  to  the  case  at  bar,  it  will  bring  us  to  the 
conclusion  that  the   testator's  domicile  in  Waterville  remained  un- 


SECT.   I.]  OILMAN  V.   GILMAN.  49 

changed.     Are  there  any  facts  that  should  make  this  case  an  excep- 
tion to  the  rule? 

The  testator  continued  to  vote  in  Waterville  about  one  half  of  the 
time.  There  is  no  evidence  that  he  ever  voted  in  New  York.  His 
manner  of  life  there,  boarding  generally  at  hotels,  where  he  always 
registered  his  name  as  from  "Maine,"  renders  it  probable  that  he 
never  claimed  or  was  admitted  to  be  a  voter  in  that  city. 

He  paid  a  tax  upon  personal  as  well  as  real  estate  in  Waterville, 
a  few  of  the  years  after  he  went  into  business  in  New  York.  He 
does  not  appear  ever  to  have  paid  any  tax  in  the  latter  place  but  one 
year.  He  evidently  belonged  to  that  class  of  men,  fortunately  small 
in  numbei,  who  have  no  stronger  desire  than  to  avoid  the  payment 
of  taxes  anywhere. 

These  facts  have  little  tendency  to  establish  anything  but  the  inten- 
tion of  the  testator.  Residence,  being  a  visible  fact,  is  not  usually 
in  doubt.  The  intention  to  remain  is  not  so  easily  proved.  Both 
must  concur  in  order  to  establish  a  domicile.  Harvard  College  v. 
Gore,  5  Pick.  370.  And,  as  both  are  known  to  be  requisite  in  order 
to  subject  one  to  taxation,  or  to  give  him  the  right  of  suffrage,  any 
resident  who  submits  to  the  o*ie,  or  claims  the  other,  may  be  pre- 
sumed to  have  such  intention.  Both  parties  claim  that  the  will  itself 
furnishes  evidence  of  the  testator's  domicile.  At  most,  it  can  be  of 
little  weight,  except  on  the  question  of  his  intention.  Such  inten- 
tion must  relate  to  the  future  and  not  to  the  past.  A  will  made  at  or 
near  the  close  of  life  will  not  be  likely  to  throw  much  light  on  that 
question.  It  must  be  an  intention  to  reside.  An  intention  to  dis- 
pose of  his  property  according  to  the  laws  of  any  place,  does  uot  tend 
to  fix  the  testator's  domicile  there.  So  that,  if  the  will  is  made  in 
conformity  with  our  laws,  and  even  if,  as  is  contended,  some  of  its 
provisions  would  be  void  by  the  laws  of  New  York,  that  cannot  affect 
the  question  of  domicile.  Hoskins  v.  Matthews,  35  Eng.  Law  and 
Eq.  532;  Anstruther  v.  Chalmer,  2  Simons,  1.  Nor,  on  the  other 
hand,  does  the  fact  that  he  described  himself,  in  the  will,  and  in  the 
codicil,  as  "of  the  city  and  State  of  New  York,"  make  any  material 
difference.     Whicker  v.  Hume,  5  Eng.  Law  and  Eq.  52. 

During  the  last  twenty  years  of  the  testator's  life,  his  ruling  pur- 
pose seems  to  have  been  to  accumulate  property  abroad,  and  escape 
taxation  there  and  at  home.  This  led  him  to  sacrifice,  to  a  large 
extent,  the  enjoyments  of  domestic  life,  and  to  sever  or  neglect  all 
those  social  ties  which  might  have  given  him  position  and  influence 
in  the  community.  He  pursued  this  process  of  isolation,  because, 
while  it  did  not  interfere  with  his  gains,  it  diminished  his  expenses. 
This  was  what  rendered  his  domicile  a  question  of  doubt.  This  is 
what  gives  to  the  testimony,  as  it  gave  to  his  life,  an  aspect  of  incon- 
sistency and  contradiction.  But  through  it  all  there  is  apparent  an 
intention  to  retain  his  home  in  Waterville,  as  a  place  of  retreat  for 
himself  during  life,  and  a  place  of  residence  for  his  family  after  his 

4 


50 


WILBRAHAM   V.    LUDLOW.  [CHAP.    U. 


decease.  He  never  had  any  such  home  elsewhere.  And,  upon  the 
whole  evidence,  we  are  satisfied  that  his  domicile  was  never  changed. 
The  decree  of  the  Probate  Court  is  aflBrmed,  with  costs  for  the 
appellees.^ 


WILBRAHAM   y.   LUDLOW. 

Supreme  Judicial  Court  of  Massachusetts.     1868. 

[Reported  99  Massachusetts,  587.] 

Foster,  J.^  The  question  in  the  present  case  was,  whether  the 
pauper,  whose  settlement  was  once  in  the  plaintiff  town  of  Wilbraham, 
had  acquired  a  new  settlement  in  Ludlow.  The  burden  of  proof  to 
establish  this  was  on  the  plaintiffs.  After  the  presiding  judge  had 
announced  the  rule  of  law  which  he  deemed  to  govern  the  case,  and 
the  instructions  which  he  proposed  to  give  to  the  jury,  the  plaintiffs 
declined  to  argue  the  case,  submitted  to  a  verdict  for  the  defendants, 
and  alleged  exceptions.  Under  these  circumstances,  the  only  question 
open  for  revision  is  the  correctness  of  the  rulings.  The  evidence  is 
not  for  the  court  to  pass  upon,  and  is  reported  only  to  make  the 
instructions  intelligible  and  enable  us  to  judge  better  whether  they 
were  pertinent  and  accurate. 

The  pauper  leased  his  house  in  Ludlow  in  June,  1857,  and  never 
lived  in  it  again.  He  remained  in  that  town,  working  as  a  laborer, 
until  August  in  that  year.  He  then  went  to  his  brother's  house  in 
Wilbraham,  and  afterwards  worked  about,  as  a  day  laborer,  in  the 
towns  of  Wilbraham,  Springfield,  and  Ludlow,  till  October,  1861,  after 
which  he  remained  in  Wilbraham  in  the  family  of  Horace  Clark,  who 
was  about  that  time  appointed  his  guardian,  until  he  was  committed  as 
an  insane  pauper  to  the  hospital  at  Northampton.  The  proposition  to 
be  maintained  by  the  i)laiiitiir3  was,  that  after  August,  1857,  he  con- 
tinued to  reside  in  Ludlow  witliin  the  meaning  of  the  pauper  laws  ;  so 
that  a  settlement  in  that  town  could  be  subsequently  acquired.  There 
was  certainly  no  actual  continuance  of  his  former  home  in  that  town ; 
it  was  broken  up  and  he  had  abandoned  it,  apparently  without  any 
intention  to  return  there  to  live.  But  the  argument  for  the  plaintiffs 
is,  that  the  pauper's  domicile  remained  in  Ludlow  until  he  acquired  a 
new  one  in  some  other  town,  and  that,  while  absent  in  fact,  he  con- 
tinued to  live  there  in  conk'mplation  of  law,  and  by  such  constructive 
residence  the  prescribed  period  for  acquiring  a  settlement  was  com- 
pie ted. 

Assuming  that  this  view  of  the  law  is  correct,  and  that  domicile  and 
residence  are  identical  under  tlie  pauper  laws,  we  are  nevertheless  of 
opinion  that  the  rule  of  law  stat^pd  to  the  jury  was  correct.     If,  from 

1  Arc.  Somcrville  i-.  .Soinerville,  5  Ves.  750 ;  Harvard  College  v.  Gore,  6  Pick.  370. 
—  Ed. 

8  The  opinion  only  is  given  :  it  sufficiently  states  the  case.  — Ed. 


SECT.    I.]  BANGS   V.   BREWSTER.  51 

the  time  the  pauper  left  Ludlow  in  August,  1857,  he  had  "  no  opinions, 
desires,  or  intentions  in  relation  to  residence,  except  to  have  a  home 
wherever  he  worked,"  then  he  did  have  in  each  successive  town  where 
he  lived  as  a  laborer  a  home  and  domicile  so  long  as  he  remained  there. 
It  must  be  borne  in  mind  that  this  was  the  case  of  one  who  had  aban- 
doned his  former  dwelling-place,  either  with  no  intention  of  return,  or 
at  the  most  with  such  vague,  indefinite,  and  remote  purposes  in  this 
respect  that  they  would  not  prevent  him  from  readil}'  acquiring  a  new 
domicile  wherever  he  might  go.  The  person  was  a  day  laborer  without 
family,  separated  by  judicial  decree  from  his  wife.  Such  a  man,  so 
situated,  when  he  is  laboring  in  one  town  with  no  other  intention  as  to 
residence  except  to  have  a  home  wherever  he  works,  may  well  be  deemed 
to  live  there  with  the  purpose  of  remaining  for  an  indefinite  period  of 
time,  and  thus  to  have  there  all  the  home  he  has  anywhere,  as  much  of 
a  domicile  as  such  a  wanderer  can  have.  At  least  it  was  competent  for 
the  jury  to  come  to  that  conclusion  ;  and  the  instructions  under  which 
they  did  so  were  unobjectionable. 

It  is  unnecessary  to  attempt  a  precise  definition  of  the  term  domicile, 
as  to  which  that  eminent  English  judge,  Dr.  Lushington,  has  said  that, 
"  although  so  many  powerful  minds  have  been  applied  to  the  question, 
there  is  no  universally  agreed  definition  of  the  term,  no  agreed  enumera- 
tion of  the  ingredients  which  constitute  domicile."  Maltass  v.  Maltass, 
1  Rob.  Ecc.  74.  Story  Confl.  Laws,  c.  3.  Our  own  adjudged  cases 
sufficiently  establish  the  rule  that  one  who  is  residing  in  a  place  with 
the  purpose  of  remaining  there  for  an  indefinite  period  of  time,  and 
without  retaining  and  keeping  up  any  animus  revertendi,  or  intention 
to  return,  to  tlie  former  home  which  he  has  abandoned,  will  have  his 
domicile  in  the  place  of  his  actual  residence.  Sleeper  v.  Paige.  15  Gray, 
349  ;  Whitney  r.  Sherborn,  12  Allen,  111.  Where  the  question  is  one 
of  national  domicile,  this  statement  may  not  be  correct ;  for  such  a  con- 
dition of  facts  might  not  manifest  an  intention  of  expatriation.  But 
it  is  accurate  enough  for  cases  like  the  present,  which  relate  to  a  change 
of  domicile  from  one  place  to  another  within  the  same  Commonwealth. 

Excei^tions  overruled} 


BANGS   V.   BREWSTER. 

Supreme  Jcdicial  Court  of  Massachusetts.     1873. 

[Reported  111  Massachusetts,  382.] 

Morton,  J.^     The  question  at  the  trial  was  whether  the  plaintiff  had 

on  May  1,  1869,  acquired  a  domicile  in  Orleans.     There  is  no  doubt  as 

1  "  A  sea  captain,  who  has  neither  domicile  nor  residence  abroad,  whose  domicile  of 
origin,  being  abandoned  long  ago,  without  intention  of  returning,  should  be  considered  /  h' 
as  fost,  and  who  has  no  residence  except  on  the  steamer  which  he  commands,  is  in  the  p^     ^ 
eye  of  the  law,  for  the  purpose  of  service  of  process  on  him,  domiciled  in  the  port  where  y 

his  vessel  is  moored  at  the  time  of  service."  —  Court  of  Ghent  (1891),  21  Clunet,  584 
But  see  Boothbay  v.  Wiscasset,  3  Me.  354.  —  Ed. 

2  Part  of  the  opinion  only  is  given.  — Ed. 


r^ 


52  DUPUY   V.   WUETZ.  [CHAP.  IL 

to  the  rule  of  law  that  the  plaintiffs  domicile  of  origin  in  Brewster  ad- 
hered to  him  until  he  had  acquired  a  domicile  somewhere  else,  and  that 
in  order  to  effect  a  change  of  domicile  he  must  not  only  have  had  the 
intent  to  make  his  home  in  some  other  town,  but  he  must  in  fact  have 
made  liis  home  there.  The  intent  and  the  act  must  concur,  and  until 
the  intent  was  consummated  by  an  actual  removal  of  his  4iome,  no 
change  of  domicile  was  effected.  Wiiitney  y.  Sherborn,  12  Allen,  111. 
Carnoe  v.  Freetown,  9  Gray,  357. 

The  question  is  as  to  the  application  of  this  rule  to  the  facts  of  this 
case.  Tlie  plaintiff  was  a  shipmaster,  most  of  whose  time  was  spent 
at  sea.  He  went  to  sea  in  November,  1867,  taking  his  wife  with  him, 
and  in  December,  1868,  he  sent  his  wife  to  Orleans,  and  she  arrived 
there  in  February,  1869.  He  did  not  arrive  at  Orleans  until  July, 
1869,  so  that  he  was  not  personally  present  in  Orleans  on  May  1, 
1869.  The  special  findings  of  the  jury  settle  conclusively  that  when 
he  went  to  sea  in  November,  1867,  he  had  the  definite  intent  to  make 
Orleans  his  home,  and  that  in  December,  1868,  he  sent  his  wife  to 
Orleans  in  pursuance  of  that  intent.  We  think  the  jury  were  justified 
in  finding  that  his  domicile  was  in  Orleans  on  the  first  of  May. 

B}'  sending  his  wife  to  Orleans  with  the  intent  to  make  it  his  home, 
he  thereb}'  changed  his  domicile.  The  fact  of  removal  and  the  intent 
concurred.  Although  he  was  not  personall}'  present,  he  established  his 
home  there  from  the  time  of  his  wife's  arrival.^ 


DUPUY  V.  WURTZ. 
Court  of  Appeals,  New  York.     1873. 

[Reported  53  New  York,  556.] 

Rapallo,  J. 2  When  Mrs.  Wurtz  went  to  Europe  with  her  hus- 
band, in  1859,  she  was  domiciled  in  the  city  and  State  of  New  York. 
She  and  her  husband  were  natives  of  the  United  States.  It  does 
not  appear  in  the  case  that  she  ever  had  had  any  domicile  except  in 
this  State,  and  it  seems  to  be  conceded  on  both  sides  that  this 
was  her  domicile  of  origin. 

1  Ace.  Anderson  v.  Anderson,  42  Vt.  350.  Contra,  Hart  v.  Horn,  4  Kan.  232. 
In  Porterfield  v.  Augusta,  67  Me.  556  (1877),  it  was  held  that  tlie  liushand's  domicile 
couhl  not  thus  be  changed  if  the  wife's  removal  was  without  his  prior  consent.  See 
further,  Fayette  v.  Livermore,  62  Me.  229.  If  the  wife  removes,  the  husband  remain- 
ing at  the  old  domicile,  their  domicile  is  of  course  not  changed.  Scholes  v.  Mun-ay  Iron 
Works  Co.,  44  la.  190.  And  the  fact  that  a  man's  family  is  settled  in  a  certain  place 
(though  prima  fuck  evidence  that  he  is  domiciled  there,  Brewer  v.  Linnaeus,  36  Me.  428) 
is  consistent  with  his  being  domiciled  elsewhere.  Greene  v.  Windham,  13  Me.  225; 
Cambridge  v.  Charlestown,  13  Mass.  501 ;  Hairstou  v.  Hairston,  27  Miss.  704  ;  Pearce 
r.  S.,  1  Sneed.  63. —En. 

*  Only  so  much  of  the  opinion  as  deals  with  the  question  of  domicile  is  given. —  En. 


SECT.    I.]  DUPUY    V,    WURTZ.  53 

It  is  not  pretended  that  she  or  her  husband  had  abandoned  their 
domicile  in  New  York  up  to  the  time  of  his  death  in  Europe  in  1861 ; 
and  from  the  evidence,  which  we  have  carefully  examined,  but  do 
not  consider  it  necessary  to  recite  in  detail,  we  are  clearly  of  opinion 
that,  up  to  the  fall  of  1868,  she  had  not  for  a  moment  relinquished  her 
intention  and  expectation,  often  declared  orally,  and  in  her  written 
correspondence,  of  returning  to  her  home  in  New  York  as  soon  as  the 
condition  of  her  health  should  permit;  that  her  sojourn  in  Europe  was 
compulsory,  being  caused  by  ill  health  and  the  advice  of  her  physi- 
cian that  she  was  not  physically  able  to  bear  the  voyage  and  the  ex- 
citement which  would  await  her  on  her  return;  that  she  had  not 
acquired  any  domicile  abroad,  and  up  to  the  time  of  the  execution  of 
the  will  in  question,  November  21,  1868,  she  continued  to  be  a  citizen 
of  this  State. 

But  it  is  claimed  on  the  part  of  the  contestants  that  although  it 
should  be  conceded  that  she  was  a  citizen  of  New  York  at  that  time, 
and  then  intended  to  return,  she  changed  her  intention,  after  execut- 
ing the  will,  and  acquired  a  domicile  at  Nice,  and  that  this  change 
destroyed  the  validity  of  the  will,  it  not  having  been  executed  accord- 
ing to  the  laws  of  France.  This  is  the  only  branch  of  the  case  which 
presents  questions  of  difficulty. 

The  counsel  for  the  contestants  is  sustained  by  authority  in  the 
position  that  the  domicile  of  the  testatrix  at  the  time  of  her  dea'th, 
and  not  at  the  time  of  the  execution  of  the  will,  is  the  material  in- 
quiry; and  that  as  to  personal  property,  the  question  of  intestacy,  or 
of  the  valid  execution  of  her  will,  depends  upon  the  law  of  the  place 
where  she  was  domiciled  at  the  time  of  her  death.  This  question  was 
decided  after  much  discussion,  and  notwithstanding  the  dissents  of 
three  eminent  judges  of  this  court,  in  the  case  of  Moultrie  v.  Hunt, 
23  N.  Y.  394. 

In  England,  the  embarrassments  likely  to  arise  from  such  a  rule  are 
now  obviated,  as  to  British  subjects,  by  the  Act  of  Parliament  of  24 
and  25  Victoria,  chapter  114,  1861-2,  which  provides  in  substance, 
as  to  wills  made  after  the  passage  of  the  act,  that  wills  of  personal 
estate  made  out  of  the  United  Kingdom  by  a  British  subject  shall  be 
deemed  well  executed,  whatever  may  be  the  domicile  of  the  testator 
at  the  time  of  making  the  will,  or  of  his  death,  if  made  according  to 
the  forms  required  by  the  law  of  the  place  where  made,  or  of  the 
place  of  the  domicile  of  the  testator  at  the  time  of  making  the  will, 
or  of  the  laws  then  in  force  in  that  part  of  Her  Majesty's  dominions 
where  he  had  his  domicile  of  origin.  Also,  that  no  subsequent  change 
of  domicile  shall  affect  the  validity  or  construction  of  the  will. 
This  enactment  substantially  conforms  the  law  of  England  to  that 
which  generally  prevails  in  continental  Europe.  We  have  no  such 
statute,  and  must  therefore  follow  the  rule  laid  down  in  Moultrie  v. 
Hunt,  and  hold  that  if  at  the  time  of  her  death,  January  8,  1871, 
Mrs.  Wurtz  had  changed  her  domicile  and  ceased  to  be  a  citizen  of 


54  DUPUY   V.    WUKTZ.  [chap.    II. 

this  State,  her  will  is  not  valid  here,  unless  it  would  be  valid  accord- 
ing to  the  law  of  the  place  of  her  domicile  at  the  time  of  her  death. 
(See  also  1  Brad.  69;  Story  Couf.  Laws,  §  473.)  The  important  ques- 
tion, therefore,  is  whether  the  evidence  establishes  such  a  change  of 
the  domicile  of  the  testatrix  as  is  alleged  by  the  contestants. 

A  reference  to  some  of  the  elementary  principles  governing  ques- 
tions of  domicile  will  facilitate  this  inquiry. 

One  leading  rule  is  that  for  the  purposes  of  succession  every  person 
must  have  a  domicile  somewhere,  and  can  have  but  one  domicile,  and 
that  the  domicile  of  origin  is  presumed  to  continue  until  a  new  one  is 
acquired.  (Somerville  v.  Somerville,  5  Ves.  750,  786,  787 ;  Story, 
Conf.  Laws,  §  45;  Abingtou  v.  N.  Bridgewater,  23  Pick.  170; 
Graham  r.  Pub.  Admr.,  4  Brad.  128;  De  Bouneval  v.  De  Bonneval,  1 
Curteis,  856 ;  Attorney-General  v.  Countess  of  Wahlstatt,  3  Hurl.  & 
Colt.  374;  Aikman  v.  Aikman,  3  McQueen,  855,  863,  877.) 

The  statute  of  New  York  of  1830,  2  Stat,  at  Large,  p.  69,  §  69a, 
referred  to  by  the  learned  counsel  for  the  contestants,  does  not  affect 
this  principle,  nor  does  it  aid  in  determining  whether  Mrs.  Wurtz 
had  lost  her  domicile  or  citizenship  in  New  York. 

The  object  and  effect  of  this  act  are  fully  explained  in  Matter  of 
Catharine  Roberts'  Will,  8  Paige,  525,  526;  Isham  v.  Gibbons,  1 
Bradf.  69;  4  Bradf.  128. 

To  effect  a  change  of  domicile  for  the  purpose  of  succession  there 
must  be  not  only  a  change  of  residence,  but  an  intention  to  abandon 
the  former  domicile,  and  acquire  another  as  the  sole  domicile.  There 
must  be  both  residence  in  the  alleged  adopted  domicile  and  intention 
to  adopt  such  place  of  residence  as  the  sole  domicile.  Residence 
alone  has  no  effect  per  se,  though  it  may  be  most  important,  as  a 
ground  from  which  to  infer  intention.  Length  of  residence  will  not 
alone  effect  the  change.  Intention  alone  will  not  do  it,  but  the  two 
taken  together  do  constitute  a  change  of  domicile.  (Hodgson  v.  De 
Beauchesue,  12  Moore  P.  C.  Cases,  283,  328;  Munro  v.  Munro,  7  CI. 
&  F.  877;  Collier  v.  Rivaz,  2  Curteis,  857;  Aikman  v.  Aikman,  3 
McQueen,  855,  877.)  This  rule  is  laid  down  with  great  clearness  in 
the  case  of  Moorhouse  v.  Lord,  10  H.  L.  283,  292,  as  follows: 
Change  of  residence  alone,  however  long  continued,  does  not  effect  a 
change  of  domicile  as  regulating  the  testamentary  acts  of  the  indi- 
vidual. It  may  be,  and  is,  strong  evidence  of  an  intention  to  change 
the  domicile.  But  unless  in  addition  to  residence  there  is  an  inten- 
tion to  change  the  domicile,  no  change  of  domicile  is  made.  And  in 
Whicker  v.  Hume,  7  H.  L.  139,  it  is  said  the  length  of  time  is  an 
ingredient  in  domicile.  It  is  of  little  value  if  not  united  to  intention, 
and  is  nothing  if  contradicted  by  intention.  And  in  Aikman  v. 
Aikman,  3  McQueen,  877,  Lord  Cranworth  says,  with  great  concise- 
ness, that  the  rule  of  law  is  perfectly  settled  that  every  man's  domi- 
cile of  origin  is  presumed  to  continue  until  he  has  acquired  another 
sole  domicile  with  the  intention  of  abandoning  his  domicile  of  origin; 


SECT.    1.1  DUPUY   V.    WURTZ.  55 

that  this  change  must  be  animo  et  facto,,   and  the  burden  of   proof 
unquestionably  lies  upon  the  party  who  asserts  the  change. 

The  question  what  shall  be  considered  the  domicile  of  a  party,  is 
in  all  cases  rather  a  question  of  fact  than  of  law.  (Bruce  v.  Bruce, 
6  Bro.  Par.  C.  5G6.)  With  respect  to  the  evidence  necessary  to 
establish  the  intention,  it  is  impossible  to  lay  down  any  positive 
ritle.  Courts  of  justice  must  necessarily  draw  their  conclusions  from 
all  the  circumstances  of  each  case,  and  each  case  must  vary  in  its 
circumstances;  and  moreover,  in  one  a  fact  may  be  of  the  greatest 
importance,  but  in  another  the  same  fact  may  be  so  qualified  as  to  be 
of  little  weight.      (]  2  Moore  Priv.  C.  C.  330.) 

In  passing  upon  such  a  question,  in  view  of  the  important  results 
flowing  from  a  change  of  domicile,  the  intention  to  make  such  a 
change  should  be  established  by  very  clear  proof  (Donaldson  v.  Mc- 
Clure,  20  Scotch  Session  Cases,  2d  series,  321 ;  S.  C.  afH'd,  3  Mc- 
Queen, 852),  especially  when  the  change  is  to  a  foreign  country. 
(Moorhouse  v.  Lord,  10  H.  L.  283.) 

The  intention  may  be  gathered  both  from  acts  and  declarations. 
Acts  are  regarded  as  more  important  than  declarations,  and  written 
declarations  are  usually  more  reliable  than  oral  ones. 

The  principal  if  not  the  only  act  done  by  Mrs.  Wurtz,  in  1868,  bear- 
ing upon  the  question  of  an  intention  to  abandon  her  domicile  in 
New  York,  consisted  in  her  letting  her  house  in  Fifth  Avenue  to 
Mr.  Gray  in  that  year.  This  house  she  had  kept  unoccupied  during 
all  her  stay  abroad  up  to  that  time,  and  it  is  to  be  observed  that  in 
letting  it  to  Mr.  Gray,  the  testatrix  reserved  one  room  for  the  storage 
of  some  of  her  effects.  In  all  other  respects  she  continued  to  live 
after  1868,  as  she  had  done  during  the  preceding  nine  years,  dwelling 
all  the  time  in  hotels,  passing  her  winters  at  Nice,  and  during  the 
residue  of  the  year  travelling  on  the  continent  and  in  England. 
Nice  had  for  many  years  been  her  headquarters.  She  there  retained 
one  room  in  the  hotel  for  the  storage  of  such  personal  effects  as  she 
did  not  desire  to  take  with  her  upon  her  travels.  The  same  reasons 
which  had  theretofore  prevented  her  from  returning  to  what  she  in- 
variably called  her  home,  still  continued  to  exist.  She  had  failed 
to  recover  the  health  of  which  she  was  in  pursuit,  and  her  physicians 
still  continued  to  advise  her  that  her  health  would  not  permit  her  to 
make  the  voyage  home.  But  up  to  the  time  of  her  death  she  retained 
her  property  and  investments  in  this  State,  made  no  investments 
abroad,  did  not  purchase  or  even  hire  a  permanent  place  of  residence, 
and  lived  continually  in  hotels. 

But  after  the  execution  of  the  will  there  was  a  change  in  the  tenor 
of  her  correspondence,  and  in  some  of  her  oral  declarations  on  the 
subject  of  returning  to  what  she  still  continued  to  call  her  home,  and 
it  is  upon  these  declarations  that  the  contestants'  case  principally 
rests.  In  all  her  correspondence,  up  to  the  time  of  the  making  of 
the  will,  whenever  the  subject  was  alluded  to,  she  had  clearly  exhib- 


56  DUPUY    V.    WURTZ.  [chap.    II. 

ited  not  only  an  intention,  but  a  determination  and  expectation  of 
returning  as  soon  as  lier  health  should  permit,  and  in  many  instances 
she  had  mentioned  a  deflnite  period  for  the  continuance  of  her  sojourn 
abroad,  and  in  others  down  to  October,  in  1868,  she  placed  the  con- 
tinuance of  her  stay  upon  the  ground  that  her  physicians  would  not 
permit  her  to  return. 

On  the  20th  of  April,  1868,  she  wrote  to  Mr.  Seymour:  "Dr. 
Pantaleone  has  told  me  very  plainly  that  he  cannot  permit  me  to 
cross  the  Atlantic ;  that  1  have  no  strength  to  combat  a  voyage,  and 
all  the  trials  that  are  to  meet  me  on  my  arrival.  So  here  I  am."  On 
the  29th  of  September  she  again  writes:  "In  fact  with  that  and 
other  troubles  I  have  been  ill,  and  have  been  put  back  three  years  in 
my  convalescence.  Now  I  never  expect  to  be  well."  And  on  the 
3d  of  October,  1868,  she  says  to  Mrs.  Seymour:  "But  my  nervous 
system  has  been  shattered,  and  after  the  experience  of  the  past  year 
(in  heavy  trials)  I  see  why  my  physicians  have  not  wished  me  to  go 
home.  ...  Do  you  not  think  my  articles  ought  to  be  in  one  place, 
except  the  silver? " 

The  first  letter  of  all  the  series  in  evidence,  bearing  upon  the  ques- 
tion of  an  abandonment  of  the  intention  to  return,  was  written  on  the 
21st  of  November,  1868,  the  very  day  of  the  execution  of  the  will. 
It  is  addressed  to  Mrs.  Seymour.  In  it  the  testatrix  says:  "I  am 
now  in  Dr.  Pantaleone's  care,  and  find  all  three  physicians.  Dr. 
Vallery  in  Rome,  Dr.  Mannoir  in  Geneva,  and  Dr.  Pantaleone,  agree 
that  it  is  rest  and  tranquillity  of  mind  is  very  important  to  me. 
Many  thanks  for  your  kind  wishes.  But  except  to  see  a  few  friends 
I  have  no  inducement  to  return  to  America.  My  nerves  would  not 
endure  the  shock,  and  it  is  plain  that  my  life  is  more  quiet  here.  But 
I  do  not  intend  to  expatriate  myself,  and  hold  firmly  to  my  allegiance 
to  my  beloved  country."  In  her  will,  bearing  date  the  same  day, 
she  makes  the  following  declaration:  "As  I  have  for  several  years 
resided  in  Europe,  sojourning  now  at  one  place,  and  now  at  another, 
as  my  health  and  comfort  have  required,  I  deem  it  proper  for  me  here 
to  say,  that  I  consider  my  home  and  residence  as  still  being  in  the 
city  of  New  York,  in  my  beloved  country,  the  United  States  of 
America."  August  5th,  1869,  from  Geneva  she  writes  to  Mrs.  Sey- 
mour as  follows:  "I  think  Charles  is  staying  in  Europe  on  my 
account,  and  I  never  expect  to  return.  But  I  feel  badly  at  any  sacri- 
fice for  me.  But  Dr.  Pantaleone  is  correct.  Any  moral  excitement 
upsets  me  away  from  turbulent  spirits,  and  there  is  much  to  worry 
lue  at  home."  And  on  the  13th  of  October,  1870,  the  last  date  of 
the  series  of  letters  in  evidence,  she  writes  to  Mrs.  Courtney:  "I 
never  can  live  in  a  cold  climate  again,  and  the  few  years  I  have  to 
live,  I  want  to  live  in  comfort  and  repose." 

These  are  all  the  written  declarations  of  the  testatrix  bearing  upon 
the  (piestion.  There  was  also  evidence  of  oral  declarations,  but  they 
do  not  throw  any  additional  light  upon  the  intentions  of  the  testatrix. 


SECT.   I.]  DUPUY   V.   WURTZ.  57 

Mary  Brown,  a  colored  servant,  who  was  in  the  service  of  the  deceased 
during  all  her  stay  in  Europe,  testified  that  she  always  said,  of  late 
years,  that  she  never  would  return  to  America.  That  the  doctors 
told  her  she  was  not  able  to  come,  and,  finally,  she  gave  it  up,  and 
said  she  would  not  come.  Mrs.  Slemmer  testified  that,  at  Geneva, 
in  the  summer  of  1870,  Mrs.  Wurtz  said  to  her,  "I  know  when  I  am 
well  off,  indeed  I  am  not  going  back;  I  should  never  have  any  com- 
fort if  I  did."  She  said  she  had  no  intention  of  returning,  and  had 
let  her  house  and  disposed  of  her  furniture.  Mr.  Sandford  testified 
that  he  had  frequently  spoken  to  her  of  her  returning  to  America,  and 
her  reply  invariably  was  that  she  could  not  come,  that  her  health 
would  not  admit  of  it.  Mr.  Gray  and  Mr.  Aldis  testified  substan- 
tially to  the  same  effect. 

This  is,  in  substance,  all  the  evidence  in  the  case  tending  to  show 
a  change  of  domicile.  The  present  is  one  of  the  exceptional  cases 
in  which  the  duty  devolves  upon  this  court  to  pass  upon  the  facts  as 
well  as  the  law.  (And  we  think  that  the  conclusion  of  fact,  fairly  to 
be  drawn  from  all  the  evidence,  is  that  the  testatrix,  after  having  long 
and  consistently  entertained  the  intention  of  returning,  had  finally 
become  satisfied  that  the  state  of  her  health  and  nerves  was  such  that 
she  would  be  unable  to  return  to  her  home,  and  would,  in  all  proba- 
bility, die  abroad. )( At  the  same  time  it  establishes  no  intention  to 
adopt  a  foreign  domicile,  but  that  she  desired  and  claimed  to  retain 
her  domicile  of  origin,  and  to  have  her  estate  administered  according 
to  the  laws  of  the  State  of  New  York.  '^This,  the  learned  counsel  for 
the  contestants  contends,  the  law  would  not  permit  her  to  do.  That 
her  long-continued  stay  in  Europe,  in  connection  with  her  final  aban- 
donment of  the  idea  of  returning  to  New  York;  her  dwelling,  during 
the  winter  of  each  year,  at  Nice,  furnishing,  in  part,  the  rooms  which 
she  occupied  in  the  hotel;  the  removal  to  that  place  of  a  portion  of 
her  personal  effects,  her  hiring  an  apartment  in  the  hotel  by  the  year 
for  the  storage  of  such  articles  as  she  did  not  carry  with  her  on  her 
summer  travels,  and  always  returning  to  the  same  place,  afforded  such 
clear  evidence  of  the  abandonment  of  her  domicile  in  New  York,  and 
adoption  of  a  new  domicile  at  Nice,  that  no  claim  on  her  part  to 
continue  to  be  considered  a  citizen  and  resident  of  New  York  could 
preserve  her  domicile  of  origin ;  and  he  has  cited  numerous  authori- 
ties in  support  of  these  positions. 

An  examination  of  these  authorities  will  show  that  they  proceed 
upon  the  ground  that  the  person  whose  domicile  was  in  question  had 
actually  settled  in  a  new  residence,  with  the  intention  of  making  it  a 
permanent  home;  that  this  intention  was  manifested  by  unequivocal 
acts  which  outweighed  any  declarations  to  the  contrary,  and  the 
intention  was  found  as  matter  of  fact. 

The  principal  cases  referred  to  in  this  connection  are  Stanley  v. 
Bernes,  3  Hagg.  Ecc.  R.  373;  In  re  Steer,  3  H.  &  N.  594;  Ander- 
son V.   Laneuville,  9  Moore  Priv.  C.   Cases,  325;    Hoskins  v.   Mat- 


58  DUPUY    V.   WURTZ.  [chap.    II. 

thews,  35  Eng.  L.  &  Eq.  540;  Whicker  v.  Hume,  13  Beav.  384;  7 
H.  L.  124;  Hegeman  v.  Fox,  31  Barb.  475;  Ennis  v.  Smith,  14 
How.  U.  S.  423. 

In  Stanley  v.  Bernes,  the  testator,  a  British  subject,  had  been  natu- 
ralized in  Portugal,  and  the  point  decided  was  that  a  British  subject 
might  acquire  a  domicile  abroad  (a  proposition  which  had  been  dis- 
puted. Curling  v.  Thornton,  2  Addams'  R.  19),  and  that  his  claim  to 
be  considered  a  British  subject  did  not  destroy  his  foreign  domicile. 
In  re  Steer,  the  testator  had  resided  many  years  in  Hamburg,  and 
had  been  regularly  constituted  a  burgher  of  that  city  to  enable  him  to 
trade  there.  In  his  will,  made  while  on  a  visit  to  England,  he  recited 
those  facts,  and  his  intention  to  return  to  Hamburg,  and  at  the  same 
time  declared  that  he  did  not  mean  to  renounce  his  domicile  of  origin 
as  an  Englishman.  The  court  in  that  case  conceded  the  principle  of 
law  that  the  domicile  of  origin  continued  until  the  testator  had  mani- 
fested an  intention  of  abandoning  it  and  acquiring  another  as  his  sole 
domicile,  but  held  that  there  was  evidence  of  such  an  intention,  and 
decided,  as  matter  of  fact,  that  he  had  elected  Hamburg  as  his  domi- 
cile; that  he  thereby  necessarily  gave  up  his  English  domicile,  as  he 
could  not  retain  both,  and  that  the  declaration  in  his  will  was  unavail- 
ing. In  Anderson  v.  Laneuville  the  testator's  domicile  of  origin 
was  in  Ireland.  He  had  incontestably  changed  his  domicile  to  Eng- 
land. He  afterwards  broke  up  his  establishment  in  England  and 
moved  to  France,  where  he  bought  and  furnished  a  house,  in  which  he 
resided  permanently  for  thirteen  years.  The  contest  was  between  his 
English  and  French  domicile,  and  was  decided  as  a  question  of  fact. 
In  Hoskins  v.  Matthews,  the  decedent  was  held  to  have  acquired  a 
domicile  in  Tuscany  by  residence,  the  purchase  of  a  villa  and  the 
establishment  of  his  family  there.  Notwithstanding  his  continued 
attnchment  for  his  native  country,  and  his  often  expressed  desire  to 
return  there,  and  the  fact  that  he  was  obliged,  by  his  health,  to  live 
in  a  milder  climate  than  that  of  his  birth,  the  fact  being  established 
that  he  had  formed  the  intention  of  permanently  changing  his  domi- 
cile, the  court  held  that  the  change  was  not  the  less  effectual  because 
induced  by  motives  of  health;  at  the  same  time  admitting  that  even 
a  permanent  residence  in  a  foreign  country,  occasioned  by  the  state 
of  health,  may  not  operate  as  a  change  of  the  domicile,  and  that  every 
case  must  stand  upon  its  own  circumstances. 

In  Whicker  r.  Hume,  13  Beav.  384,  and  7  H.  L.  124,  the  domicile 
of  origin  of  tlie  testator  was  in  Scotland.  The  evidence  of  an  aban- 
donment of  that  domicile,  and  the  adoption  of  a  domicile  in  England 
was  clear.  Afterward  he  went  to  France,  leaving  some  of  his  prop- 
erty in  England,  which  he  desired  a  friend  to  keep  for  him  until  his 
return.  He  died  in  Paris,  having  just  made  a  will  in  the  English 
form,  which  was  sustained. 

The  Scotch  domicile  was  regarded  as  entirely  out  of  the  question, 
and  the  contest  was  between  the  English  and  French  domicile.  (7 
H    L.  13^.) 


SECT.    I.]  DUPUY    V.    WURTZ.  59 

In  Hegeman  v.  Fox,  much  relied  upon  by  the  contestants,  the 
question  was  whether  the  testator  was  at  the  time  of  his  death  domi- 
ciled in  Florida.  He  was  a  native  of  Massachusetts,  had  been  domi- 
ciled in  New  York,  afterward  in  Williamsburgh,  and  then  removed  to 
Florida.  There  was  no  evidence  of  any  intention  to  retain  his  domi- 
cile in  Williamsburgh,  and  the  opinion  of  the  court  was  that  the 
weight  of  the  evidence  established  that  he  neither  expected  nor  in- 
tended to  return  to  the  Northern  States.  He  purchased  a  plantation 
in  Florida,  stocked  it,  and  furnished  his  house,  went  to  housekeeping, 
entered  into  the  business  of  planting,  and  made  other  family  arrange- 
ments looking  to  a  permanent  residence  there.  Upon  these  facts  it 
was  held  that  the  circumstances  that  this  change  of  residence  was 
induced  by  considerations  of  climate  and  health,  and  that  domestic 
trjiibles  intervening  induced  the  expression  of  an  intention  to  return 
to  New  York,  did  not  overcome  the  effect  of  his  acts,  which  clearly 
indicated  an  intention  to  make  his  permanent  home  in  Florida.  The 
case  is  well  reasoned  in  the  opinion  of  the  court,  and  does  not  conflict 
in  principle  with  the  result  at  which  we  have  arrived,  but  depends 
upon  its  own  peculiar  circumstances. 

In  Ennis  v.  Smith  the  question  was  whether  General  Kosciusko  had 
acquired  a  domicile  in  France.  He  left  Poland  voluntarily,  came  to 
this  country,  and  afterward  went  voluntarily  to  France,  where  he 
lived  for  fifteen  years.  He  could  have  returned  to  Poland  at  any  time. 
He  was  made  a  French  citizen  by  decree  of  the  national  assembly,  of 
which  privilege  he  could  not  avail  himself  unless  he  became  domiciled 
in  France.  Residence  was,  iu  that  case,  said  to  be  ijriina  facie  evi- 
dence of  domicile,  and  the  facts  were  held  to  establish  a  domicile  in 
France. 

In  all  these  cases  it  was  upon  the  ground  of  a  clearly  proved  volun- 
tary and  intentional  acquisition  of  a  foreign  domicile  that  the  courts 
held  the  former  domicile  abandoned. 

The  late  cases  of  Jopp  v.  Wood,  [1864]  34  L.  J.  Eq.  212,  and 
Moorhouse  v.  Lord,  10  H.  L.  284,  proceed  upon  the  ground  that  in 
order  to  acquire  a  new  domicile  there  must  be  an  intention  to  aban- 
don the  existing  domicile.  All  the  authorities  agree  that  to  effect  a 
change  of  domicile  there  must  be  an  intention  to  do  both.  Some  of 
them  hold  that  the  intention  to  do  one  implies  an  intention  to  do  the 
other.  But  in  all  the  cases  the  question  of  intention  is  treated  as 
one  of  fact,  to  be  determined  according  to  the  particular  circumstances 
of  each  case.  (See  also  Douglas  v.  Douglas,  Law  Rep.  12  Eq. 
617,  647;  The  Attorney-General  v.  The  Countess  de  Wahlstatt,  3 
Hurl.  &  Colt.  374;  Udny  v.  Udny,  L.  R.  l' Scotch  App.  441,  1070; 
White  V.  Brown,  1  Wallace,  Jr.  217.) 

In  the  present  case  we  find  no  sufficient  evidence  of  an  intention  to 
adopt  Nice  or  any  other  place  as  a  permanent  home  or  domicile.  The 
plans  of  the  testatrix  after  November,  1868,  so  far  as  disclosed,  had 
reference  to  failing  health  and  an  apprehension  that  she  might  not 


60  DUPUY    V.    WURTZ.  [CHAP.   II. 

long  survive,  rather  than  to  adopting  and  settling  in  a  new  home. 
If  she  chose  to  be  a  wanderer  during  the  short  period  of  life  which 
she  supposed  might  still  remain  to  her,  she  would  not  thereby,  as  re- 
spects her  succession,  lose  her  domicile  of  origin.  (Attorney-General 
V.  Countess  of  Wahlstatt,  3  H.  &  C.  374;  White  v.  Brown,  1  Wall., 
Jr.  217.) 

Her  long  residence  abroad,  upon  which  the  contestants  rely,  is  not 
very  significant  in  this  case,  as  during  by  far  the  greater  part  of  that 
time,  in  fact  during  all  except  about  two  and  a  quarter  years  before 
her  death,  she  was  clearly  shown  to  be  a  mere  sojourner  in  Europe, 
intending  and  fully  expecting  to  return,  and  retaining  her  house  in 
New  York;  and  all  the  acts  relied  upon  to  show  the  acquisition  of  a 
domicile  in  Nice  were  done  during  that  period,  and  while  there  can 
be  no  doubt  of  her  continuing  to  be  a  citizen  of  New  York.  Her 
habit  of  spending  her  winters  in  Nice,  her  furnishing  her  rooms, 
hiring  a  store-room  at  the  hotel,  the  bringing  out  there  of  her  nick- 
nacks  as  they  are  called,  were  all  before  she  had  given  any  evidence 
of  the  relinquishment  of  her  plan  of  return,  and  while  she  still  retained 
her  house  in  Fifth  Avenue,  New  York.  The  only  evidence  of  any 
change  consists  in  her  declarations.  These  indicate  no  intention  to 
settle  permanently  in  any  particular  place,  and  are  clearly  contradic- 
tory of  any  intention  to  abandon  her  domicile  in  New  York.  A  mere 
declaration  of  intention  not  to  return  is  not  conclusive  as  to  a  change 
of  domicile.  As  well  expressed  by  Lord  Kingsdown  in  Moorhouse  v. 
Lord,  10  H.  L.  293  :  "1  can  well  imagine  a  case  in  which  a  man 
leaves  England  with  no  intention  whatever  of  returning,  but  with  a 
determination  and  certainty  that  he  will  not  return."  He  then  sup- 
poses the  case  of  one  laboring  under  a  mortal  disease,  whose  physi- 
cian advises  him  that  his  life  may  be  prolonged  or  his  sufferings 
mitigated  by  a  change  to  a  warmer  climate,  and  says  that  to  hold 
that  he  cannot  do  that  without  losing  his  right  to  the  intervention  of 
the  English  laws  as  to  the  transmission  of  his  property  after  his 
death,  would  be  revolting  to  common  sense  and  the  common  feelings 
of  humanity.  (See  S.  C.  p.  283,  per  Lord  Cranworth;  Story  Conf. 
Laws,  §§  45,  46;  Guthrie's  Savigny,  62,  63;  Munro  i'.  Munro,  7  CI. 
&  Fin.  842,  876;  1  Rob.  Ecc.  R.  606;  2  Hurl.  &  Colt.  982;  3  id. 
374.) 

Unless  a  new  domicile  was  acquired,  as  has  been  already  shown, 
the  domicile  of  origin  continues,  and  must  govern,  else  there  would 
be  no  law  according  to  which  the  estate  could  be  administered,  espe- 
cially in  a  case  of  intestacy.' 

1  Ace.  Moorhouse  v.  Lord,  10  H.  L.  C  272.  See  Johnstone  v.  Bonttie,  10  CI.  &  F. 
42.  So  domirile  is  not  necessarily  changed  by  an  ab.sence,  however  long  continued,  for 
pleasure,  travel,  etc.  :  Culbertson  ?;.  Floyd  County,  52  Ind..36l  ;  Sears  r.  Pxistoii,  1  Met. 
250;  Cadwalader  v.  Howell,  18  N.  J.  L.  138.  Nor  by  absence  merely  for  business: 
Easterly  v.  Goodwin,  35  Conn.  279  ;  Greene  v.  Greene,  11  Pick.  410  ;  Ilallet  v.  Bassett, 
100  Mass.  167  ;  S.  v.  Dayton,  77  Mo.  678;  see  Jopp  v.  Wood,  34  Beav.  88.     Nor  by 


SECT.    I.]  HAERAL   V.    HARRAL.  61 

HARRAL  V.    HARRAL. 

Court  of  Errors  and  Appeals,  New  Jersey.     1884. 

[Reported  39  New  Jersey  Equity,  279.] 

Depue,  J.^  The  domicile  of  the  testator's  parents,  at  the  time  of  his 
birth,  was  in  Bridgeport,  Connecticut.  That  was  his  domicile  of  origin. 
His  father  died  in  18G2.  In  1865  the  family  residence  in  Bridgeport  was 
sold,  and  in  1866  his  mother  removed  to  New  York  with  all  the  family, 
except  one  son,  who  was  married,  and  had  his  household  in  Bridgeport. 
The  mother  rented  a  house  in  New  York  as  a  residence  for  herself  and 
the  family,  which  they  occupied  until  her  death  in  December,  1867. 
After  his  mother's  death,  the  testator  resided  in  New  York  City  with 
his  brother,  until  he  was  appointed  house-surgeon  in  the  New  York 
Hospital,  and  had  his  residence  in  the  hospital  until  he  went  to  Europe 
in  August,  1869. 

The  decedent  went  abroad  for  the  purpose  of  acquiring  the  German 
language  and  continuing  his  professional  studies.  In  1869  he  was  in 
Paris  temporarily,  and  in  the  fall  of  that  year  left  Paris  for  Germany, 
where  he  remained  about  two  years.  He  then  went  to  Paris  again, 
and  resided  there  in  No.  8  Rue  de  la  Sorbonne,  known  as  the 
Latin  Quarter.  In  1872,  he  became  acquainted  with  the  complain- 
ant, who  lived  with  him  as  his  mistress  at  No.  8  Rue  de  la  Sorbonne 
until  they  were  married  on  the  20th  of  February,  1877.  Imme- 
diately after  their  marriage  they  began  housekeeping  in  a  house  rented 
by  him  at  Suresnes,  a  village  a  short  distance  from  Paris.  He  had  a 
lease  of  the  house  for  two  years,  and  he  and  his  wife  continued  to  occupy 
it  until  his  return  to  America,  in  May,  1878.  He  seems  to  have  been 
attached  to  his  wife.  In  May,  1877,  he  wrote  to  Mr.  Wallis,  announc- 
ing his  marriage,  and  said  he  was  "happy  and  contented."  The  facts 
connected  with  the  residence  of  the  decedent  at  Suresnes  are  fully 
stated  in  the  opinion  of  the  chancellor,  and  need  not  be  repeated  here. 
The  chancellor,  from  the  testimony,  concluded  that  the  decedent  had 
settled  himself  in  France  to  live  there,  and  make  it  his  home.  The 
circumstances  under  which  he  was  brought  to  America  are  also  detailed 
in  the  chancellor's  opinion.  They  show  no  intention  on  the  part  of  the 
decedent  to  make  any  change  at  that  time  in  his  domicile.  The  evi- 
dence is  quite  to  the  contrary. 

A  person  sui  Juris  may  change  his  domicile  as  often  as  he  pleases. 
To  effect  such  a  change,  naturalization  in  the  country  he  adopts  as  his 

absence  as  a  volunteer  soldier  :  S.  v.  Judge,  13  Ala.  805  ;  Brewer  v.  Linnaeus,  36  Me. 
428.  Nor  by  absence  to  hold  public  office  :  Dennis  v.  S.,  17  Fla.  389  ;  Walden  v. 
Canfield,  2  Rob.  (La.)  466  ;  Venable  v.  Paulding,  19  Minn.  488  ;  Hannon  v.  Griz- 
zard,  89  N.  C.  115.  But  in  cases  of  this  kind  the  domicile  will  of  course  be  changed 
if  the  requisite  intent  exists.  Doucet  v.  Geoghegan,  9  Ch.  Div.  441 ;  Mooar  v.  Harvej-, 
128  Mass.  219  ;  "Wood  v.  Fitzgerald,  3  Or.  568.  —  Ed. 

1  Only  so  much  of  the  opinion  as  discusses  the  question  of  domicile  is  given.  —  Eb 


62  HAKKAL   V.   HAKKAL.  [CHAP.    II. 

domicile  is  not  essential.  He  need  not  do  all  that  is  necessary  to  divest 
himself  of  his  original  nationality.  There  must  be  a  voluntarj'  change 
of  residence  ;  the  residence  at  the  place  chosen  for  the  domicile  must 
be  actual ;  to  the  factum  of  residence  there  must  be  added  the  animus 
manoidi ;  and  that  place  is  the  domicile  of  a  person  in  which  he  has 
voluntarily  fixed  his  habitation,  not  for  a  mere  temporary  or  special 
purpose,  but  with  a  present  intention  of  making  it  his  home,  unless  or 
until  something  which  is  uncertain  or  unexpected  shall  happen  to  in- 
duce him  to  adopt  some  other  permanent  home.  Haldane  v.  Eckford, 
L.  R.  8  Eq.  631  ;  King  v.  Foxwell,  L.  R.  3  Ch.  D.  518 ;  Lord  v.  Col- 
vin,  5  Jur.  (N.  S.)  351  ;  Aikman  v.  Aikman,  7  Id.  1017,  1019  ;  Douglas 
V.  Douglas,  L.  R.  12  Eq.  617,  644  ;  Udny  v.  Udny,  L.  R.  1  H.  L.  Sc. 
441  ;  Cadwalader  v.  Howell,  3  Harr.  144,  145. 

We  think  the  evidence  proves  that  the  testator's  domicile,  arising 
from  the  factum  of  residence  and  the  animus  manendi,  was,  at  the 
time  of  his  death,  b}'  the  jus  gentium,  in  France. 

But  it  is  contended  that,  inasmuch  as  the  decedent  never  obtained  an 
authorization  from  the  French  government,  he  was  incapable,  by  the 
law  of  that  countrj',  of  acquiring  a  domicile  in  France,  and  that  there- 
fore his  domicile  of  origin,  or  his  domicile  before  he  took  up  his  resi- 
dence in  France,  either  revived,  or,  by  the  French  law,  would  govern, 
in  the  disposition  of  his  personal  estate  if  it  was  administered  upon  in 
France.  Article  XIII.  of  the  Code  Napoleon  is  relied  on  to  sustain 
this  contention.  That  article  is  in  these  words:  "The  foreigner  who 
shall  have  been  admitted  by  the  government  to  establish  his  domicile  in 
France  shall  enjoy  in  that  country  all  civil  rights  so  long  as  he  shall 
continue  to  reside  there." 

It  appears  from  the  evidence  that  the  authorization  contemplated  by 
this  article  of  the  Code  is  obtained  by  an  application  to  the  head  of  the 
government,  and  is  attended  with  formalities  almost  as  solemn  as  those 
required  for  naturalization  in  France. 

The  construction  of  this  article  was  before  the  English  courts  in 
Bremer  ?'.  Freeman,  10  Moore  P.  C.  306,  and  Hamilton  v.  Dallas, 
L.  R.  1  Ch.  D.  257,  and  was  somewhat  considered  in  the  New  York 
Court  of  Appeals  in  Dupuy  v.  Wurtz,  53  N.  Y.  556.  In  Bremer  v. 
Freeman  it  was  held  that,  if  by  thejws  gentium,  the  decedent,  who  was 
an  English  woman  by  birth,  was  de  facto  domiciled  in  France,  the 
authorization  of  the  French  government  was  not  necessary  to  confer 
upon  her  the  right  of  testacy,  and  that  her  will,  not  executed  in  con- 
formity with  the  French  law,  was  invalid.  In  Hamilton  v.  Dallas,  Vice- 
Chancellor  Bacon  held  that  a  de  facto  domicile,  governing  the  suc- 
cession of  the  personal  estate  of  a  decedent,  might  be  acquired  b}'  a 
foreigner  resident  in  that  countr}-  who  had  not  obtained  the  govern- 
ment autliorization  required  by  Article  XIII.  of  the  French  Code,  as 
the  condition  for  the  enjoyment  by  a  foreigner  resident  in  that  country 
of  full  civil  rights.  The  learned  judge  who  prepared  the  opinion  in 
Dupuy  V.  Wurtz  expressed  a  contrary  opinion,  but  the  case  did  not  call 


SECT.   I.]  BORLAND    V.    BOSTON.  63 

for  a  decision  on  that  point.  The  counsel  of  the  defendants  have  pro- 
duced several  decisions  of  the  French  courts  which  hold  that,  in  cases 
of  intestacy,  the  inheritance  of  a  foreigner  domiciled  de  facto  in  France 
will  not  be  distributed  under  the  French  law  unless  he  shall  have  ob- 
tained the  authorization  required  b}'  Article  XIII.  of  the  Code.  Pepin's 
Case,  decided  in  1868  ;  Melizet's  Case,  decided  January,  1869  ;  Ott's 
Case,  decided  January,  1869  ;  Forgo's  Case,  decided  in  1875  ;  and 
Cuirana's  Case,  decided  in  1881,  It  will  be  observed  that  all  these 
cases  relate  to  the  transmission  of  property  by  inheritance,  or  by  testa- 
mentary disposition.  They  do  not  touch  the  question  in  controversy 
in  this  case.  The  complainant  does  not  claim  the  property  in  dispute 
by  any  right  of  succession,  nor  does  she  dispute  the  validity  of  the  tes- 
tator's will,  as  not  being  executed  according  to  the  laws  of  France. 
The  claim  she  makes  to  the  one  half  of  the  personal  property  of  her 
deceased  husband  she  founds  upon  the  marriage  in  France,  and  the 
incidents  of  the  married  relation,  in  virtue  of  which  she  claims  that,  by 
the  French  law,  she  became  thereby  ipso  facto  entitled  to  that  share  in 
his  movable  propert3% 

The  French  jurists  recognize  a  distinction  between  such  a  legal  domi- 
cile as  a  foreigner  can  acquire  by  fulfilling  the  requirements  of  Article 
XIII.  of  the  Code,  and  will  entitle  him  to  all  the  civil  rights  of  native- 
born  Frenchmen,  and  a  domicile,  in  fact,  which  is  acquired  by  a  resi- 
dence without  compliance  with  any  legal  formalities.  The  right  of  a 
foreigner  to  contract  a  lawful  marriage  is  not  made  to  depend  on  the 
observance  of  such  forms  as  are  necessar}'  to  the  acquisition  of  citizen- 
ship ;  it  is  given  on  the  sole  condition  of  six  months'  residence  by 
either  of  the  parties.  Article  LXXIV.  of  the  Code  provides  that  "  the 
marriage  shall  be  celebrated  in  the  commune  in  which  the  one  or  the 
other  of  the  parties  shall  be  domiciled,"  and  declares  that  "  this  domi- 
cile shall  be  established  by  six  months'  continued  habitation  within 
the  same  commune."  These  conditions  were  fulfilled,  and  the  marriage 
was  lawfully  celebrated  under  the  French  law.^ 


BORLAND   V.  BOSTON. 
Supreme  Judicial  Court  of  Massachusetts.     1882. 

[Reported  1.32  Massarhnsefts,  89.] 

Lord,  J.^  The  evidence  tended  to  show  that  the  plaintiff  was  born  in 
Boston  in  1824,  and  had  lived  there  until  June,  1876,  Avhen  he  sailed  for 
Europe  with  his  family.  He  testified  that  when  he  left  Boston  he  had 
definitely  formed  the  intention  of  not  returning  to  Boston  as  a  resi- 
dent; that   in  the  fall  of  1876  he  had  decided  to  make  Waterford, 

1  Jcc.  Collier  v.  Rivaz,  2  Curt.  Eccl.  855.  —  Ed. 

2  Part  of  the  opinion,  dealing  with  a  different  question,  is  omitted.  —  Ed. 


64  BORLAND   V.    BOSTON.  [CHAP.    II. 

Connecticut,  bis  residence,  and  tlien  formed  the  intention  of  purchas- 
ing land  there,  which  he  bought  on  May  28,  1877;  and  that  he  re- 
mained in  Europe  until  1879,  when  he  returned  to  this  country,  and 
went  to  Waterford.  On  this  evidence,  the  judge  instructed  the  jury, 
"  that  a  citizen,  by  the  laws  of  this  Commonwealth,  must  have  a 
home  or  domicile  somewhere  on  the  first  day  of  May  for  the  purpose 
of  taxation;  that  in  order  to  change  such  home  or  domicile,  once 
acquired,  and  acquire  a  new  one,  the  intention  to  make  the  change 
and  the  fact  must  concur;  that  if  the  plaintiff,  with  no  definite  plan 
as  to  the  length  of  time  he  should  remain  abroad,  and  no  definite  pur- 
pose about  a  change  of  domicile,  went  to  p:urope  with  his  family,  that 
would  not  effect  a  change  of  his  domicile  from  Boston,  and  he  would 
remain  liable  to  taxation  there;  but  that  if  he  left  Boston  in  1876 
with  his  family  to  reside  in  Europe  for  an  indefinite  length  of  time, 
with  the  fixed  purpose  never  to  return  to  Boston  again  as  a  place  of 
residence,  and  with  the  fixed  purpose  of  making  some  place  other  than 
Boston  his  residence  whenever  he  should  return  to  the  United  States, 
and  had  in  his  mind  fixed  upon  such  place  of  residence  before  May 
1,  1877,  and  remained  in  Europe  until  after  that  time,  he  was  not 
liable  to  this  tax  as  an  inhabitant  of  Boston  on  the  first  of  May  of 
that  year ;  that  whether  he  had  done  enough  to  make  Waterford  his 
home  or  not,  was  not  essential  in  this  case,  —  if  he  had  lost  his  home 
in  or  ceased  to  be  an  inhabitant  of  Boston  at  the  time,  he  was  not 
taxable  there." 

Certainly,  the  latter  part  of  this  instruction  would  be  understood  to 
be  in  conflict  with  the  former;  for,  not  referring  now  to  the  words 
used  by  the  judge,  the  obvious  meaning  of  the  whole  sentence  is,  first, 
to  instruct  the  jury  that  a  man  once  having  a  home  here  is  taxable 
here  until  both  the  purpose  to  change  his  home  and  the  fact  of  chang- 
ing his  home  concur;  and  afterwards  to  instruct  them  that,  if  his  in- 
tention to  make  another  place  his  home  is  formed  after  he  leaves  this 
country,  and  before  the  first  of  May,  such  intention  removes  his  lia- 
bility to  taxation,  even  although  the  fact  of  change  does  not  concur 
with  the  intention.  Although  there  is  this  obvious  inconsistency,  it 
arises  partly  from  inherent  ditllculties  in  the  case,  partly  from  the  im- 
possibility of  stating  a  fixed  rule  which  shall  be  applicable  to  all 
cases,  under  the  infinite  variety  of  circumstances  attending  them,  and 
the  various  adjudications  which  have  been  made  upon  the  subject. 
The  source  of  the  difficulty  is  in  the  use  of  words  of  exactly,  w  sub- 
stantially, or  partially,  the  same  signification,  but  at  different  times 
used  with  different  significations. 

There  are  certain  words  which  have  fixed  and  definite  significa- 
tions. "Domicile  "  is  one  such  word;  and  for  the  ordinary  purposes 
of  citizenship,  there  arc  rules  of  general,  if  not  universal  acceptation, 
applicable  to  it.  "Citizenship,"  "habitancy,"  and  "residence"  are 
severally  words  which  may  in  the  particular  case  mean  precisely  the 
same  as  "domicile,"  but  very  frequently  they  may  have  other  and 


SECT.    I.]  BOELAND   V.    BOSTON.  65 

inconsistent  meanings;  and  while  in  one  use  of  language  the  expres- 
sions a  change  of  domicile,  of  citizenship,  of  habitancy,  of  residence, 
are  necessarily  identical  or  synonj-mous,  in  a  different  use  of  lan- 
guage they  import  different  ideas.  The  statutes  of  this  Common- 
wealth render  liable  to  taxation  in  a  particular  municipality  those 
who  are  inhabitants  of  that  municipality  on  the  first  day  of  May  of 
the  year  Gen.  Sts.  c.  11,  §§  6,  12.  It  becomes  important,  there- 
fore, to  determine  who  are  inhabitants,  and  what  constitutes 
habitancy. 

The  only  case  adjudged  within  this  Commonwealth,  in  which  the 
word  of  the  statute,  "inhabitant,"  is  construed  to  mean  something 
else  than  "being  domiciled  in,"  is  Briggs  v.  Rochester,  16  Gray, 
337,  although  that  decision  is  subsequently  recognized  in  Colton  v. 
Longmeadow,  12  Allen,  598.  In  Briggs  v.  Rochester,  Mr.  Justice 
Metcalf,  in  speaking  of  the  word  "inhabitant,"  says  that  it  has  not 
the  meaning  of  the  word  "domicile"  "in  its  strictly  technical  sense, 
and  with  its  legal  incidents."  He  says  also  that  the  word  "domicile  " 
is  not  in  the  Constitution  nor  in  the  statutes  of  the  Commonwealth. 
So  far  as  the  Constitution  is  concerned,  this  is  correct,  but  he  had 
evidently  overlooked  a  statute  of  ten  years  before,  in  which  the  word 
"domicile  "  was  used,  and  upon  the  very  subject  of  taxation,  in  a  pro- 
viso in  these  words:  "Provided  that  nothing  herein  contained  shall 
exempt  said  person  from  his  liability  to  the  payment  of  any  tax 
legally  assessed  upon  him  in  the  town  of  his  legal  domicile."  St. 
1850,  c.  276.  Gen.  Sts.  c  11,  §  7.  This  language  is  a  strong  legis- 
lative assertion  that  domicile  is  the  test  of  liability  to  taxation;  and 
in  an  opinion  given  by  the  justices  of  this  court  to  the  House  of 
Representatives  in  1843,  in  reference  to  a  student's  right  to  vote  in 
the  municipality  in  which  he  is  residing  for  the  purposes  of  educa- 
tion, it  was  said,  "And  as  liability  to  taxation  for  personal  property 
depends  on  domicile."     5  Met.  587,  590. 

Nor  do  we  think  that  the  opinion  in  Briggs  i\  Rochester  gives  the 
true  force  as  used  in  the  Constitution  of  the  word  "inhabitant;  "  for 
we  cannot  doubt  that  for  the  purposes  of  taxation  the  word  "inhabi- 
tant "  must  be  used  in  the  saijie  sense  as  when  used  in  reference  to 
electing  and  being  elected  to  office;  especially  as  at  that  time  the 
payment  of  a  tax  duly  assessed  was  one  of  the  qualifications  of  an 
elector;  and  more  especially  as  the  Constitution  itself  professes  to 
give  its  definition  of  "inhabitant"  for  the  purpose  of  removing  all 
doubt  as  to  its  meaning.  Its  language  is,  "And  to  remove  all  doubts 
concerning  the  meaning  of  the  word  '  inhabitant '  in  this  Constitu- 
tion, every  person  shall  be  considered  as  an  inhabitant,  for  the  pur- 
pose of  electing  and  being  elected  into  any  office,  or  place  within  this 
State,  in  that  town,  district,  or  plantation,  where  he  dwelleth,  or  hath 
his  home."     Const.  Mass.  c.  1,  §  2,  art.  2. 

Nor  do  we  see  how  the  construction  given  to  the  statute  is  consist- 
ent with  the  result  at  which  the  court  arrived.     The  learned  judge 

5 


66  BOKLAND   V.   BOSTON.  [CHAP.    II. 

Bays,  "In  the  statute  on  which  this  case  depends,  we  are  of  opinion 
that  the  words  '  where  he  shall  be  an  inhabitant  on  4he  first  day  of 
May,'  mean  where  he  shall  have  his  home  on  that  day."  It  is  there- 
fore clear  that  the  learned  judge  does  not  give  to  the  word  "inhabi- 
tant "  the  meaning  which  the  construction  of  the  statute  before  re- 
ferred to  authorizes  him  to  give,  but  he  does  give  the  exact  definition 
of  the  Constitution,  to  wit,  "where  he  dwelleth,  or  hath  his  home;" 
for  these  words  have  not  in  the  Constitution  two  meanings,  but  the 
single  signification  given  to  them  by  the  learned  judge,  "his  home," 
the  exact,  strict,  technical  definition  of  domicile. 

We  cannot  construe  the  statute  to  mean  anything  else  than  "being 
domiciled  in."  A  man  need  not  be  a  resident  anywhere.  He  must 
have  a  domicile.  He  cannot  abandon,  surrender,  or  lose  his  domicile, 
until  another  is  acquired.  A  cosmopolite,  or  a  wanderer  up  and 
down  the  earth,  has  no  residence,  though  he  must  have  a  domicile. 
It  surely  was  not  the  purpose  of  the  Legislature  to  allow  a  man  to 
abandon  his  home,  go  into  another  State,  and  then  return  to  this 
Commonwealth,  reside  in  different  towns,  board  in  different  houses, 
public  or  private,  with  no  intention  of  making  any  place  a  place  of 
residence  or  home,  and  thus  avoid  taxation.  Such  a  construction  of 
the  law  would  create  at  once  a  large  migratory  population. 

Although  we  have  said  that  the  case  of  Briggs  v.  Rochester  has 
been  recognized  in  Colton  v.  Longmeadow,  12  Allen,  598,  yet  we 
ought  to  state  that  the  decision  in  Colton  v.  Longmeadow  was  placed 
upon  entirely  different  grounds.  It  was  there  held  that  the  plaintiff 
had  lost  his  domicile  in  Massachusetts  because  he  had  actually  left 
the  Commonwealth,  and  was  actually  i?i  itiuere  to  his  new  domicile, 
which  he  had  left  this  Commonwealth  for  the  purpose  of  obtaining, 
and  which  in  fact  he  did  obtain.  If  it  should  be  deemed  sound  to 
hold  that  a  person,  who,  before  the  first  of  May,  with  an  intention  in 
good  faith  to  leave  this  State  as  a  residence  and  to  adopt  as  his  home 
or  domicile  another  place,  is  in  good  faith  and  with  reasonable  dili- 
gence pursuing  his  way  to  that  place,  is  not  taxable  here  upon  the 
first  of  May,  the  doctrine  should  be  limited  strictly  to  cases  falling 
within  these  facts.  And  both  of  the  cases  cited,  Briggs  v.  Rochester 
and  Colton  if.  Longmeadow,  would  fall  within  the  rule.  In  each  of 
those  cases,  the  plaintiff  had  determined,  before  starting  upon  his 
removal,  not  only  upon  his  i*eraoval,  but  upon  his  exact  destination, 
and  in  fact  established  himself,  according  to  his  purpose,  without 
delay,  and  within  a  reasonable  time. 

We  think,  however,  that  the  sounder  and  wiser  rule  is  to  make  tax- 
ation dependent  upon  domicile.  Perhaps  the  most  important  reason 
for  this  rule  is,  that  it  makes  the  standard  certain.  Another  reason 
is,  that  it  is  according  to  the  general  views  and  traditions  of  our 
people. 

One  cannot  but  be  impressed  l)y  certain  peculiarities  in  Briggs  v. 
Rochester.     The  bill  of   exceptions  in  that  case  begins   thus:    "It 


SECT.    I.]  BORLAND    V.   BOSTON.  67 

was  admitted  by  both  parties  and  so  presented  to  the  jury,  that  the 
only  question  at  issue  was  the  domicile  of  the  plaintiff  on  the  first  of 
May,  1858 ;  and  that  if  he  was  then  an  inhabitant  of  the  defendant 
town,  the  tax  was  rightly  imposed;  but  that  if  he  was  not  on  that  day 
an  inhabitant  of  said  town,  he  was  not  then  rightly  taxable  and  taxed 
therein."  Nothing  can  be  more  clear  than  that  all  parties  understood, 
and  the  case  was  tried  upon  the  understanding,  that  domicile  and  in- 
habitancy meant  the  same  thing;  otherwise,  domicile,  instead  of 
being  "the  only  question  at  issue,"  would  not  have  been  in  issue  at 
all.  And  the  judge  in  giving  his  opinion  says  that,  if  domicile  in  its 
strictly  technical  sense,  and  with  its  legal  incidents,  was  the  control- 
ling fact,  the  plaintiff  was  rightly  taxed  in  Rochester. 

Another  noticeable  fact  in  Briggs  v.  Rochester  is  this,  that  if  the 
tax-payer  in  the  pursuit  of  his  purpose  is  beyond  the  line  of  the  State 
before  the  first  of  May,  he  is  not  liable  to  taxation  in  the  State ;  but 
if  by  detention  he  does  not  cross  the  line  of  the  State  till  the  first  of 
May,  he  is  taxable  here.  We  cannot  adopt  a  rule  which  shall  make 
liability  to  taxation  depend  upon  proximity  to  a  State  line. 

We  have  said  that  we  prefer  the  test  of  domicile,  because  of  its  cer- 
tainty and  because  of  its  conformity  to  the  views  and  traditions  of 
our  people,  and,  we  may  add,  more  in  accordance  with  the  various 
adjudications  upon  the  subject  in  this  State,  and  more  in  accord  with 
the  general  legal  and  judicial  current  of  thought.  It  is  true,  that, 
as  said  by  Mr.  Justice  Metcalf,  "it  has  repeatedly  been  said  by  this 
and  other  courts,  that  the  terms  'domicile,'  'inhabitancy,'  and 
'residence  'have  not  precisely  the  same  meaning."  But  it  will  be 
found  upon  examination  that  these  three  words  are  often  used  as  sub- 
stantially signifying  the  same  thing. 

In  one  of  the  earliest  cases,  Harvard  College  v.  Gore,  5  Pick.  370, 
377,  Chief  Justice  Parker,  in  defining  the  word  "inhabitant"  as 
used  in  the  laws,  defined  it  as  one  which  imported  not  only  domicile, 
but  something  more  than  domicile.  "It  imports  citizenship  and 
municipal  relations,  whereas  a  man  may  have  a  domicile  in  a  country 
to  which  he  is  an  alien,  and  where  he  has  no  political  relations.  •  •  • 
An  inhabitant,  by  our  Constitution  and  laws,  is  one  who  being  a 
citizen  dwells  or  has  his  home  in  some  particular  town,  where  he  has 
municipal  rights  and  duties,  and  is  subject  to  particular  burdens; 
and  this  habitancy  may  exist  or  continue  notwithstanding  an  actual 
residence  in  another  town  or  another  country."  There  are  other 
passages  in  the  same  opinion  which,  although  used  alio  intuitu,  yet 
clearly  indicate  the  current  of  judicial  thought;  for  example,  "The 
term  '  inhabitant '  imports  many  privileges  and  duties  which  aliens 
cannot  enjoy  or  be  subject  to,"  p.  373;  "does  not  fix  his  domicile  or 
habitancy,"  p.  372;  "a  pretended  change  of  domicile  to  avoid  his 
taxes,"  p.  378.  There  are  other  similar  expressions  running  through 
the  whole  opinion. 

In  Lyman  v.  Fiske,  17  Pick.  231,  the  views  of  Chief  Justice  Parker 


68  BOilLAND    V.    BOSTON.  [CHAP.    II. 

in  Harvard  College  v.  Gore  were  considered  by  Chief  Justice  Shaw; 
and  although  expressing  no  dissent  from  the  views  of  Chief  Justice 
Parker,  it  is  evident  that  in  his  apprehension  the  word  "inhabitant" 
as  used  in  the  Constitution  imported  one  domiciled,  and  he  did  not 
deem  it  important  to  consider  whether  it  imported  anything  else  in 
relation  to  political  rights,  duties,  and  liabilities  than  the  word  "domi- 
ciled" would  import.  But  as  the  views  of  that  magistrate  are  never 
to  be  slightly  regarded,  and  as  he  gave  the  opinion  in  both  the  cases 
decided  by  this  court,  cited  by  Mr.  Justice  Metcalf  as  settling  that 
the  words  "domicile,"  "habitancy,"  and  "residence"  have  not  pre- 
cisely the  same  meaning,  we  cite  from  his  opinion  to  show  what  his 
views  were  of  "domicile"  and  "habitancy."  "In  some  respects,  per- 
haps, there  is  a  distinction  between  habitancy  and  domicile,  as 
pointed  out  in  the  case  of  Harvard  College  v.  Gore,  5  Pick.  377,  the 
former  being  held  to  include  citizenship  anc^  municipal  relations. 
But  this  distinction  is  believed  to  be  of  no  importance  in  the  present 
case;  because  all  the  facts  and  circumstances  which  would  tend  to 
fix  the  domicile  would  alike  tend  to  establish  the  habitancy.  It  is 
ditBcult  to  give  an  exact  definition  of  '  habitancy.'  In  general  terms, 
one  may  be  designated  as  an  inhabitant  of  that  place  which  consti- 
tutes the  principal  seat  of  his  residence,  of  his  business,  pursuits,  con- 
nections, attachments,  and  of  his  political  and  municipal  relations. 
It  is  manifest,  therefore,  that  it  embraces  the  fact  of  residence  at  a 
place,  with  the  intent  to  regard  it  and  make  it  his  home.  The  act 
and  intent  must  concur,  and  the  intent  may  be  inferred  from  declar- 
ations and  conduct." 

It  is  entirely  clear  that  in  his  opinion,  so  far  as  relates  to  municipal 
rights,  privileges,  and  duties,  there  is  substantially  no  distinction 
between  "domicile"  and  "habitancy."  And,  as  further  illustrating 
the  views  of  that  magistrate  and  the  general  sentiment  of  our  people 
as  to  the  use  of  such  language  in  legislative  enactments,  we  cite  his 
language  in  Abington  v.  North  Bridgewater,  23  Pick.  170,  176:  "In 
the  several  provincial  statutes  of  1692,  1701,  and  1767,  upon  this  sub- 
ject, the  terms  '  coming  to  sojourn  or  dwell,'  '  being  an  inhabitant,' 
'residing  and  continuing  one's  residence,'  'coming  to  reside  and 
dwell,'  are  frequently  and  variousl}'  used,  and,  we  think,  they  are 
used  indiscriminately,  and  all  mean  the  same  thing,  namely,  to  desig- 
nate the  place  of  a  person's  domicile.  This  is  defined  in  the  Consti- 
tution, c.  1,  §  2,  for  another  purpose,  to  be  the  place  '  where  one 
dwelleth,  or  hath  his  home.'  " 

Authorities  could  be  multiplied  almost  indefinitely  in  which  it  has 
been  held  by  this  court  that,  so  far  as  it  relates  to  municipal  rights, 
privileges,  powers  or  duties,  the  word  "  inhabitant"  is,  with  the  excep- 
tions before  referred  to,  universally  used  as  signifying  precisely  the 
same  as  one  domiciled.  See  Thorndike  v.  Boston,  1  Met.  242,  245; 
Sears  v.  Boston,  1  Met.  250,  252;  Blanchard  v.  Stearns,  5  Met.  298, 
304;  Otis  v.  Boston,  12  Cush.  44,  49;  Bulkley  v.  Williamstown,  3 
Gray,  493,  494. 


SECT.    I.J  BOKLAND   V.   BOSTON.  69 

As  illustrative,  however,  of  the  fact  that  domicile  and  habitancy 
are,  for  the  ordinary  purposes  of  citizenship,  such  as  voting,  liability 
to  taxation  and  the  like,  identical,  and  that  when  they  are  susceptible 
of  different  meanings  they  are  used  alio  intuitu,  we  cite  the  language 
of  Chief  Justice  Shaw  in  Otis  v.  Boston,  12  Cush.  44,  49:  "Perhaps 
this  question  has  heretofore  been  somewhat  complicated,  by  going 
into  the  niceties  and  peculiarities  of  the  law  of  domicile,  taken  in  all 
its  aspects ;  and  there  probably  may  be  cases  where  the  law  of  domi- 
cile, connected  with  the  subject  of  allegiance,  and  affecting  one's 
national  charactei*,  in  regard  to  amity,  hostility,  and  neutrality,  is 
not  applicable  to  this  subject.  But  as  a  man  is  properly  said  to  be 
an  inhabitant  where  he  dwelleth  and  hath  his  home,  and  is  declared 
to  be  so  by  the  Constitution,  for  the  purpose  of  voting  and  being 
voted  for;  and  as  one  dwelleth  and  hath  his  home,  as  the  name  im- 
ports, where  he  has  his  domicile,  most  of  the  rules  of  the  law  of  domi- 
cile apply  to  the  question,  where  one  is  an  inhabitant." 

A  very  strong  case  of  retention  of  domicile,  while  in  itinere  to  a 
new  one  which  is  subsequently  reached,  is  Shaw  v.  Shaw,  98  Mass. 
158,  in  which  the  court  say  that  the  rule  of  Col  ton  v.  Longmeadow, 
which  merely  followed  Briggs  u.  Rochester,  "is  such  an  exception  to 
the  ordinary  rule  of  construction  as  ought  not  to  be  extended." 

Upon  the  whole,  therefore,  we  can  have  no  doubt  that  the  word 
"inhabitant"  as  used  in  our  statutes  when  referring  to  liability  to 
taxation,  by  an  overwhelming  preponderance  of  authority,  means 
"one  domiciled."  While  there  must  be  inherent  difficulties  in  the 
decisiveness  of  proofs  of  domicile,  the  test  itself  is  a  certain  one; 
and  inasmuch  as  every  person  by  universal  accord  must  have  a  domi- 
cile, either  of  birth  or  acquired,  and  can  have  but  one,  in  the  present 
state  of  society  it  would  seem  that  not  only  would  less  wrong  be 
done,  but  less  inconvenience  would  be  experienced,  by  making  domi- 
cile the  test  of  liability  to  taxation,  than  by  the  attempt  to  fix  some 
other  necessarily  mo!-e  doubtful  criterion. 

Whether  the  cases  of  Briggs  v.  Rochester  and  Coltou  v.  Long- 
meadow  should  be  followed  in  cases  presenting  precisely  similar 
circumstances,  the  case  at  bar  does  not  require  us  to  decide ;  and  we 
reserve  further  expression  of  opinion  on  that  question  until  it  shall 
become  necessary  for  actual  adjudication.  If  they  are  to  be  deemed 
authority,  they  should  certainly  be  limited  to  the  exact  facts,  where 
a  person  before  leaving  this  Commonwealth  has  fixed  upon  a  place 
certain  as  his  future  home,  and  has  determined  to  abandon  this  Com- 
monwealth for  the  purpose  of  settling  in  his  new  home,  and  is,  upon 
the  first  of  May,  without  the  Commonwealth,  in  good  faith  and  with 
reasonable  despatch  actually  upon  his  way  to  his  new  home.  The 
plaintiff  does  not  bring  himself  within  this  rule;  for  although  he 
might  have  left  the  Commonwealth  with  the  fixed  purpose  to  abandon 
it  as  a  residence,  he  did  not  leave  it  on  his  way  to  a  place  certain 
which  he  had  determined  upon  as  his  future  residence,  and  was  pro 


70  YOUNG  V.   POLLAK.  [CHAP.    II. 

ceeding  to  with  due  despatch ;  and,  upon  the  general  rule  that,  having 
had  a  domicile  in  this  Commonwealth,  he  remains  an  inhabitant  for 
the  purpose  of  taxation  until  he  has  acquired  a  new  domicile,  the 
intention  and  fact  had  not  concurred  at  the  time  when  this  tax  was 
assessed.  The  instructions  of  the  presiding  judge,  therefore,  inas- 
much as  they  were  not  based  upon  the  rules  here  laid  down,  were  not 
accurately  fitted  to  the  facts  of  the  case,  and  the 

Exceptions  must  be  sustained.'* 


YOUNG  V.   POLLAK. 
Supreme  Court  of  Alabama.     1888. 

[Reported  85  Alabama,  439.] 

The  plaintiffs  were  merchants  in  the  city  of  Montgomery,  suing  on 
common  counts  for  goods  sold  and  delivered  to  Mrs.  Effie  Young,  the 
defendant,  who  was  a  married  woman.  The  defendant  pleaded  the 
general  issue,  and  a  special  plea  averring  her  coverture  ;  the  plaintiffs 
replied,  alleging  that  her  husband  had  abandoned  her,  and  had 
removed  from  the  State,  and  thereafter  the  defendant  carried  on 
business  on  her  own  account  and  in  her  own  name,  as  if  sole  and 
unmarried.^ 

Stone,  C.  J.  The  fourth  charge  given  at  the  request  of  plain- 
tiffs in  each  of  these  cases  is  in  the  following  language:  "  If  Vi^.  L. 
Young,  husband  of  defendant,  removed  into  the  State  of  Alabama  as 
a  place  of  refuge,  or  to  escape  arrest  in  the  State  of  Georgia,  and  that 
was  his  sole  purpose,  this  would  not  give  him  a  domicile  in  Alabama." 
Change  of  domicile  consists  of  an  act  done,  with  an  intent.  The  act 
is  an  actual  change  of  residence.  The  intent,  to  effect  the  change, 
must  be  to  acquire  a  new  domicile,  either  jiermanent  in  purpose,  or  of 
indefinite  duration.  A  temporary  habitation,  without  intent  to  make 
it  a  permanent  home,  or  one  of  indefinite  duration,  is  not  a  change  of 
domicile.  Merrill  v.  Morrisset,  7G  Ala.  433  ;  5  Amer.  &  Eng.  Encyc. 
of  Law,  863. 

The  charge  copied  hinges  the  question  of  Young's  change  of  domicile 
on  the  purpose  with  which  he  moved  from  Georgia  to  Alabama.  Men 
change  their  domiciles  with  very  varying  purposes  or  motives.  The 
desire  to  live  in  a  healthier  region,  to  have  better  social  or  educa- 
tional advantages,  to  enjoy  better  church  privileges,  tQ_Jb£_ near  one's 
4;elatives,  to  live  in  a  new  and  growing  country',  and  sometimes  to  be 

1  Ace.  Pfoutz  V.  Coniford,  36  Pa.  420.  N:/  change  of  domicile  takes  place  while 
one  is  in  itincre  to  a  new  doniieile  :  Lamar  v.  Mahon y,  Dudley,  92  ;  Littletield  v.  Brooks, 
50  Me.  47ri  ;  Bulkley  t;.  Willinmstown,  3  Gray,  493  ;'shaw  v.  Shaw,  98  Mass.  158.  —  Ed. 

*  This  statement,  containing  all  the  facts  necessary  to  understand  tlie  question  of 
domicile  raised,  is  substituted  for  the  statement  of  the  reporter.  Part  of  the  opiuioa 
is  omitted.  — En. 


SECT.   L]  DITSON   V.   DITSON.  71 

relieved  of  disagreeable  surroundings,  —  these  and  many  more  may  be 
classed  among  the  purposes  —  sole  purposes,  if  you  please  —  with  which 
men  change  their  residence.  Yet,  if  the  change  be  in  fact  made  with 
the  intent  to  acquire  a  new  residence,  either  permanent  or  of  indefinite 
duration,  this  is  a  change  of  domicile.  The  intent  that  the  new  hab- 
itation shall,  or  shall  not  be,  permanent,  or  of  indefinite  duration,  and 
not  the  purpose  in  making  the  change,  is  the  pivot  on  which  the  inquiry 
turns.     The  cit}'  court  erred  in  giving  this  charge. 

The  second  charge  at  the  instance  of  plaintiffs  in  each  of  these  cases 
needs  modification.  If  Young,  under  the  rules  declared  above,  be- 
came a  resident  of  Alabama,  then  his  return  to  Georgia  under  arrest, 
or  involuntary  confinement  there,  are,  of  themselves,  no  evidence  of  a 
change  of  domicile.^ 


DITSON  V.   DITSON. 
Supreme  Court  of  Rhode  Island.     1856. 

[Reported  4  Rhode  Island,  87  ] 

Ames,  C.  J.^  Although,  as  a  general  doctrine,  the  domicile  of  the 
husband  is,  by  law,  that  of  the  wife,  yet,  when  he  commits  an  offence, 
or  is  guilty  of  such  dereliction  of  duty  in  the  relation  as  entitles  her  to 
have  it  either  partially  or  totally  dissolved,  she  not  only  ma}^,  but  must, 
to  avoid  condonation,  establish  a  separate  domicile  of  her  own.  This 
she  may  establish,  nay,  when  deserted  or  compelled  to  leave  her  hus- 
band, necessity  frequently  compels  her  to  establish,  in  a  different  judi- 
cial or  State  jurisdiction  than  that  of  her  husband,  according  to  the 
residence  of  her  family  or  friends.  Under  such  circumstances  she  gains, 
and  is  eniitled  to  gain,  for  the  purposes  of  jurisdiction,  a  domicile  of 
her  own  ;  and  especially  if  a  native  of  the  State  to  which  she  flies  for 
refuge,  is,  upon  familiar  principles,  readily  redintegrated  in  her  old 
domicile.  This  is  the  well-settled  doctrine  of  law  upon  the  subject 
(Bishop  on  Marriage  and  Divorce,  §§  728-730  inch  and  cases  cited), 
and  has  b}'  no  court  been  more  ably  vindicated  than  bj'  the  Supreme 
Court  of  Massachusetts.     Harteau  v.  Harteau,  14  Pick.  181,  186. 

A  more  proper  case  for  the  application  in  favor  of  a  petitioner  for 
divorce  of  the  foregoing  principles  relating  to  the  jurisdiction  of  the 

^  One  confined  in  prison  does  not  become  domiciled  in  the  prison.  Grant  v.  Dalliber, 
11  Conn.  234  ;  Barton  v.  Barton,  74  Ga.  761.  So  one  forcibly  removed  from  his  home 
by  military  authorities  does  not  lose  his  domicile.     Hardy  v.  De  Leon,  5  Tex.  211. 

Paupers  in  a  poorhouse  do  not  acquire  a  domicile  there.  Clark  v.  Kobinson,  88  111. 
498.     Contra,  Sturgeon  v.  Korte,  34  Ohio  St.  525. 

Political  refugees  do  not  ordinarily  relinquish  their  domicile.  De  Bonneval  v. 
De  Bonneval,  1  Curt.  Eccl.  856  ;  Ennis  v.  Smith,  14  How.  400  (scmhlc)  ;  but  see  S.  v, 
De  Casinova,  1  Tex.  401.  —Ed. 

2  Part  of  the  opinion  only,  involving  the  question  of  domicile,  is  given.  —  Ed, 


72  DITSON   V.   DITSON.  [CHAP.   IL 

court  over  her  case,  and  to  the  question  of  her  domicile  in  this  State, 
can  hardly  be  imagined,  than  the  case  at  bar.  The  petitioner  is  the 
daughter  of  a  native  of  this  State,  who,  though  formerly  resident  in 
Boston,  has  for  many  years  past  been  domiciled  in  his  native  place. 
Little  Corapton.  Whilst  at  school,  the  petitioner  became  acquainted 
with  an  Englishman  of  the  name  of  Ditson,  and,  in  1842,  married  him, 
without  the  knowledge  or  consent  of  her  parents,  in  New  York.  Im- 
mediately after  marriage  the  couple  went  to  Europe,  and  from  thence 
to  Cuba,  where  they  lived  together  several  years.  Upon  their  return 
to  this  country,  she  being  in  a  feeble  and  emaciated  condition,  he  de- 
serted her  for  the  first  time  in  Boston,  and  was  absent  in  Europe,  with- 
out leaving  any  provision  for  her,  for  about  two  years.  Upon  his 
return,  they  appear  to  have  lived  together  again  ;  he,  however,  giving 
every  indication  of  a  morose  as  well  as  inattentive  husband.  After  a 
short  time,  he  deserted  her  again  in  Boston,  declaring,  upon  his  leaving 
it  for  Europe,  that  he  cared  nothing  about  it,  or  any  person  in  it,  point- 
ing, as  the  testimony  is  put  to  us,  to  his  unfortunate  wife.  He  has 
been  absent  from  her  now  between  three  and  four  years,  without  com- 
municating with  her,  or  providing,  though  of  sufficient  ability,  anything 
for  her  support,  nor  does  she  know  where  he  is,  except  that  he  has  gone 
to  Europe.  In  the  mean  time,  deserted  as  she  was,  she  was  obliged  to 
return  to  her  father's  house  in  Little  Compton  ;  where,  during  this  time, 
supported  by  him  or  by  her  own  exertions,  she  has  resided,  with  the 
excei)tion  of  about  three  months  passed  by  her  in  Newport,  Rhode 
Island.  For  this  desertion  and  neglect  to  provide  for  her,  the  proof, 
ex  parte  it  is  true,  but  coming  from  respectable  sources,  finds  no  excuse 
in  her  conduct,  which,  according  to  it,  has  always,  so  far  as  known, 
been  that  of  a  dutiful  and  faithful  wife.  .  .  .  Whatever  was  the  former 
domicile  of  the  petitioner,  we  are  satisfied  that  she  is,  and  has,  for  up- 
wards of  the  last  three  years,  been  a  domiciled  citizen  of  Rhode  Island, 
—  her  only  home,  in  the  house  of  her  father.^ 

1  "The  law  will  recognize  a  wife,  as  having  a  separate  existence,  and  separate  inter- 
ests, and  separate  rights,  in  those  cases  where  the  express  object  of  all  proceedings  is  to 
show  that  the  relation  itself  ought  to  be  dissolved,  or  so  modified  as  to  establish  sepa- 
rate interests,  and  especially  a  separate  domicile  and  home,  bed  and  board  being  put,  a 
part  for  the  whole,  as  expressive  of  the  idea  of  koine.  Otherwise,  the  parties  in  this 
respect  would  stand  upon  very  unequal  grounds,  it  being  in  the  power  of  the  husband 
to  change  his  domicile  at  will,  but  not  in  that  of  the  wife.  The  husband  might  deprive 
the  wife  of  the  means  of  enforcing  her  rights,  and  in'etfect  of  the  rights  themselves, 
and  of  the  protection  of  the  laws  of  the  Commonwealth,  at  the  same  time  that  his  own 
misconduct  gives  her  a  right  to  be  rescued  from  his  power  on  account  of  his  own  mis- 
conduct towards  her."  Shaw,  C.  J.,  in  Plarteau  v.  Harteau,  14  Pick.  181.  "She 
may  acfiuire  a  separate  domicile  whenever  it  is  necessary  or  proper  that  she  should  do 
so.  The  right  springs  from  the  necessity  for  its  exercise,  and  endures  as  long  as  the 
necessity  continues."  Swayne,  J.,  in  Cheever  i;.  Wilson,  9  Wall.  108.  Jcc.  Hanbury 
V.  Hanbury,  20  Ala.  629 ;  Chapman  v.  Chapman,  129  111.  386  ;  Hunt  v.  Hunt,  72  N.  Y- 
217.  Contra,  Yelverton  v.  Yelverton,  1  Sw.  &  Tr.  574  ;  Maguire  v.  Maguire,  7  Dana, 
181  ;  and  see  Hinds  v.  Hinds,  1  la.  36.  In  some  jurisdictions  it  is  held  that  if  a  wife 
is  living  apart  from  her  husband  for  cause,  she  must,  for  purposes  of  divorce,  have  a 


SECT.   I.J  LAMAR   V.   MICOU.  73 

LAMAR  V.   MICOU. 

Supreme  Court  of  the  United  States.     1884. 

[Reported  112  United  States,  452.] 

This  is  an  appeal  by  the  executor  of  a  guardian  (Lamar)  from  a 
decree  of  ttie  Circuit  Court  of  tlie  United  States  for  the  Southern  Dis- 
trict of  New  York,  in  favor  of  the  plaintiff,  the  administratrix  of  his 
ward.  The  bill  prayed  for  an  account  of  the  ward's  estate.  The 
guardian  alleged  that  the  property  had  been  lost  through  unfortunate 
investments  ;  and  the  question  was  whether  the  law  which  governed 
the  duties  of  the  guardian  permitted  such  investments.^ 

Gray,  J.  An  infant  cannot  change  his  own  domicile.  As  infants 
have  the  domicile  of  their  father,  he  may  change  their  domicile  by 
changing  his  own ;  and  after  his  death  the  mother,  while  she  remains  a 
widow,  may  likewise,  by  changing  her  domicile,  change  the  domicile 
of  the  infants  ;  the  domicile  of  the  children,  in  either  case,  following 
the  independent  domicile  of  their  parent.  l\ennedy  v.  Ryall,  67  N.  Y. 
379  ;  Potinger  v.  Wightman,  3  Meriv.  67  ;  l3edham  v.  Natick,  16  Mass. 
135 ;  Dicey  on  Domicile,  97-99.  But  when  the  widow,  by  marrying 
again,  acquires  the  domicile  of  a  second  husband,  she  does  not,  by 
taking  her  children  by  the  first  husband  to  live  with  her  there,  make 
the  domicile  which  she  derives  from  her  second  husband  their  domicile ; 
and  they  retain  the  domicile  which  they  had,  before  her  second  mar- 
riage, acquired  from  her  or  from  their  father.  Cumner  v.  Milton,  3 
Salk.  259  ;  s.  c.  Holt,  578  ;  Freetown  v.  Taunton,  16  Mass.  52  ;  School 
Directors  v.  James,  2  "Watts  «St  Sergeant,  568  ;  Johnson  v.  Copeland, 
35  Alabama,  521  ;  Brown  v.  Lynch,  2  Bradford,  214  ;  Mears  v.  Sinclair, 
1  West  Virginia,  185  ;  Pothier's  Introduction  Generale  aux  Coutumes, 
No.  19  ;  1  Burge  Colonial  and  Foreign  Law,  39  ;  4  Phillimore  Inter- 
national Law  (2d  ed.)  §  97. 

The  preference  due  to  the  law  of  the  ward's  domicile,  and  the  im- 
portance of  a  uniform  administration  of  his  whole  estate,  require  that, 
as  a  general  rule,  the  management  and  investment  of  his  property 

separate  domicile,  and  cannot  claim  that  of  her  husband.  "White  v.  White,  18  R.  I. 
292,  27  Atl.  506  ;  Dutcher  v.  Butcher,  39  Wis.  651. 

For  all  purposes  except  that  of  bringing  suit  for  divorce,  the  wife's  domicile  is  that 
of  her  husband,  even  if  she  is  living  apart  from  him.  Warrender  v.  Warrender,  9  Bligh, 
103  ;  Dolphin  v.  Kobbins,  7  H.  L.  C.  390  ;  Christie's  Succession,  2t)  La.  Ann.  383  ; 
Greene  v.  Windham,  13  Me.  225  ;  Greene  v.  Greene,  11  Pick.  410  ;  Hackettstown  Bank 
V.  Mitchell,  28  N.  J.  L.  516.  Contra,  Shute  v.  Sargent,  67  N.  H.  305,  infra,  p.  211. 
If  divorced  from  bed  and  board,  however,  the  wife  may  and  must  have  a  separate  domi- 
cile.    Williams  v.  Dormer,  16  Jur.  366  ;  Barbour  v.  Barbour,  21  How.  582.  — Ed. 

1  This  short  statement  of  facts,  presenting  such  facts  as  (in  addition  to  those  stated 
in  the  extract  printed)  are  necessary  for  understanding  so  much  of  the  case  as  is 
printed,  is  substituted  for  the  statement  by  Mr,  Justice  Gray.  Part  of  the  opinion  is 
omitted.  —  Ed- 


74  LAMAR    V.    MICOD.  [CHAP.    II 

should  be  governed  by  the  law  of  the  State  of  his  domicile,  especially 
when  he  actually  resides  there,  rather  than  by  the  law  of  any  State  in 
which  a  guardian  may  have  been  appointed  or  may  have  received  some 
[iroperty  of  the  ward.  If  the  duties  of  the  guardian  were  to  be  exclu- 
hivelv  regulated  by  the  law  of  the  State  of  his  appointment,  it  would 
follow  that  in  any  case  in  which  the  temporary  residence  of  the  ward 
was  changed  from  State  to  State,  from  considerations  of  health,  educa- 
tion, pleasure,  or  convenience,  and  guardians  were  appointed  in  each 
State,  the  guardians  appointed  in  the  different  States,  even  if  the 
same  persons,  might  be  held  to  diverse  rules  of  accounting  for  different 
parts  of  the  ward's  property.  The  form  of  accounting,  so  far  as  con- 
cerns the  remedy  only,  must  indeed  be  according  to  the  law  of  the 
court  in  which  relief  is  sought ;  but  the  general  rule  by  which  the 
guardian  is  to  be  held  responsible  for  the  investment  of  the  ward's 
property  is  the  law  of  the  place  of  the  domicile  of  the  ward.  Bar,  In- 
ternational Law,  §  106  (Gillespie's  translation),  438  ;  Wharton,  Con- 
flict of  Laws,  §  259. 

It  may  be  suggested  that  this  would  enable  the  guardian,  by  chang- 
ing the  domicile  of  his  wai^,  to  choose  for  hiinself  the  law  by  which  he 
should  account.  Not  so.  VThe  father,  and  after  his  death  the  widowed 
mother,  being  the  natural  guardian,  and  the  person  from  whom  the 
ward  derives  his  domicile,  may  change  that  domicile.  '  But  the  ward 
does  not  derive  a  domicile  from  any  other  than  a  natural  guardian.^  A 
testamentary  guardian  nominated  by  the  father  may  have  the  same 
control  of  the  ward's  domicile  that  the  father  had.  Wood  v.  Wood,  5 
Paige,  596,  605.  And  any  guardian,  appointed  in  the  State  of  the 
domicile  of  the  ward,  has  been  generally  held  to  have  the  power  of 
changing  the  ward's  domicile  from  one  county  to  another  within  the 
same  State  and  under  the  same  law.  Cutts  v.  Haskins,  9  Mass.  543  ; 
Ilolyoke  v.  Haskins,  5  Pick.  20  ;  Kirkland  y.  Whately,  4  Allen,  462  ; 
Anderson  v.  Anderson,  42  Vermont,  350 ;  Ex  parte  Bartlett,  4  Brad- 
ford, 221 ;  The  Queen  v.  Whitby,  L.  R.  5  Q.  B.  325,  331.  tBut  it  is 
ver}'  doubtful,  to  sa}^  the  least,  whether  even  a  guardian  appointed  in 
the  State  of  the  domicile  of  the  ward  (not  being  the  natural  guardian 
or  a  testaraentar}'  guardian)  can  remove  the  ward's  domicile  be3-ond 
the  limits  of  the  State  in  which  the  guardian  is  appointed  and  to  which 
his  legal  authority  is  confined.  \  Douglas  v.  Douglas,  L.  R.  12  Eq.  617, 
625  ;  Daniel  v.  Hill,  52  Alabama,  430  ;  Story,  Conflict  of  Laws,  §  506, 
note  ;  Dicey  on  Domicile,  100,  132.  And  it  is  quite  clear  that  a  guard- 
ian appointed  in  a  State  in  which  the  ward  is  temporarily  residing  can- 
not change  the  ward's  permanent  domicile  from  one  State  to  another. 

The  case  of  such  a  guardian  diff'ers  from  that  of  an  executor  of,  or 
a  trustee  under,  a  will.  In  the  one  case,  the  title  in  the  property  is  in 
the  executor  or  the  trustee  ;  in  the  other,  the  title  in  the  property  is  in 
the  ward,  and  the  guardian  has  only  the  custody  and  management  of 
it,  with  power  to  change  its  investment.  The  executor  or  trustee  is 
appointed  at  the  domicile  of  the  testator ;  the  guardian  is  most  fitly 


SECT.    I.]  LAMAR    V.    MICOU.  75 

appointed  at  the  domicile  of  the  ward,  and  may  be  appointed  in  any 
State  in  which  the  person  or  any  property'  of  the  ward  is  found.  The 
general  rule  which  governs  the  administration  of  the  property  in  the 
one  case  may  be  the  law  of  the  domicile  of  the  testator ;  in  the  other 
case,  it  is  the  law  of  the  domicile  of  the  ward. 

As  the  law  of  the  domicile  of  the  ward  has  no  extraterritorial  effect, 
except  by  the  comity  of  the  State  where  the  property  is  situated,  or 
where  the  guardian  is  appointed,  it  cannot  of  course  prevail  against  a 
statute  of  the  State  in  which  the  question  is  presented  for  adjudication, 
expressly  applicable  to  the  estate  of  a  ward  domiciled  elsewhere. 
Hoyt  V.  Sprague,  103  U.  S.  613.  Cases  ma}'  also  arise  with  facts  so 
peculiar  or  so  complicated  as  to  modify  the  degree  of  influence  that  the 
court  in  which  the  guardian  is  called  to  account  ma}"  allow  to  the  law 
of  the  domicile  of  the  ward,  consistently  with  doing  justice  to  the  par- 
ties before  it.  And  a  guardian,  who  had  in  good  faith  conformed  to 
the  law  of  the  State  in  which  he  was  appointed,  might  perhaps  be  ex- 
cused for  not  having  complied  with  stricter  rules  prevaiUng  at  the 
domicile  of  the  ward.  But  in  a  case  in  which  the  domicile  of  the  ward 
has  always  been  in  a  State  whose  law  leaves  much  to  the  discretion  of 
the  guardian  in  the  matter  of  investments,  and  he  has  faithfully  and 
prudently  exercised  that  discretion  with  a  view  to  the  pecuniary  inter- 
ests of  the  ward,  it  would  be  inconsistent  with  the  principles  of  equity 
to  charge  him  with  the  amount  of  the  moneys  invested,  merely  because 
he  has  not  complied  with  the  more  rigid  rules  adopted  by  the  courts  of 
the  State  in  which  he  was  appointed. 

The  domicile  of  William  W.  Sims  during  his  life  and  at  the  time  of 
his  death  in  1850  was  in  Georgia.  This  domicile  continued  to  be  the 
domicile  of  his  widow  and  of  their  infant  children  until  they  acquired 
new  ones.  In  1853,  the  widow,  by  marrying  the  Rev.  Mr.  Abercrom- 
bie,  acquired  his  domicile.  But  she  did  not,  by  taking  the  infants  to 
the  home,  at  first  in  New  York  and  afterwards  in  Connecticut,  of  her 
new  husband,  who  was  of  no  kin  to  the  children,  was  under  no  legal 
obligation  to  support  them,  and  was  in  fact  paid  for  their  board  out  of 
their  property,  make  his  domicile,  or  the  domicile  derived  by  her  from 
him,  the  domicile  of  the  children  of  the  first  husband.  Immediately 
upon  her  death  in  Connecticut,  in  1859,  these  children,  both  under  ten 
years  of  age,  were  taken  back  to  Georgia  to  the  house  of  their  father's 
mother  and  unmarried  sister,  their  own  nearest  surviving  relatives; 
and  they  continued  to  live  with  their  grandmother  and  aunt  in  Georgia 
until  the  marriage  of  the  aunt  in  January,  1860,  to  Mr.  Micou,  a  cit- 
izen of  Alabama,  after  which  the  grandmother  and  the  children  resided 
with  Mr.  and  Mrs.  Micou  at  their  domicile  in  that  State. 

Upon  these  facts,  the  domicile  of  the  children  was  always  in  Georgia 
from  their  birth  until  Januar}',  1860,  and  thenceforth  was  either  in 
Georgia  or  in  Alabama.  As  the  rules  of  investment  prevailing  before 
1863  in  Georgia  and  in  Alabama  did  not  substantially  differ,  the  ques- 
tion in  which  of  those  two  States  their  domicile  was  is  immaterial  to 


76  LAMAR   V.    MICOU.  [CHAP.  II. 

the  decision  of  this  case ;  and  it  is  therefore  unnecessary  to  consider 
whether  their  grandmother  was  their  natural  guardian,  and  as  such 
had  the  power  to  change  their  domicile  from  one  State  to  another. 
See  Hargrave's  note  66  to  Co.  Lit.  88  b  ;  Reeve,  Domestic  Relations, 
315;  2  Kent,  Com.  219;  Code  of  Georgia  of  1861,  §§  1754,  2452; 
Darden  v.  Wyatt,  15  Georgia,  414. 

Whether  the  domicile  of  Lamar  in  December,  1855,  when  he  was 
appointed  in  New  York  guardian  of  the  infants,  was  in  New  York  or 
in  Georgia,  does  not  distinctly  appear,  and  is  not  material ;  because, 
for  the  reasons  already  stated,  wherever  his  domicile  was^Jiis  duties  as 
guardian  in  the  management  and  investment  of  the  property  of  his 
wards  were  to  be  regulated  by  the  law  of  their  domicile. \ 

On  petition  for  re-hearing.  Gray,  J.,  said  (114  U.  S.  218)  :  If  the 
domicile  of  the  father  was  in  Florida  at  the  time  of  his  death  in  1850, 
then,  according  to  the  principles  stated  in  the  former  opinion,  the  dom- 
icile of  his  children  continued  to  be  in  that  State  until  the  death  of 
their  mother  in  Connecticut  in  1859.  In  that  view  of  the  case,  the 
question  would  be  whether  the}'  afterwards  acquired  a  domicile  in 
Georgia  by  taking  up  their  residence  there  with  their  paternal  grand- 
mother. Altliough  some  books  speak  only  of  the  father,  or,  in  the 
case  of  his  death,  the  mother,  as  guardian  by  nature  (1  Bl.  Com.  461 ; 
2  Kent,  Com.  219),  it  is  clear  that  the  grandfather  or  grandmother,  when 
the  next  of  kin,  is  such  a  guardian.  ■  Hargrave,  note  66,  to  Co.  Lit. 
88  b  ;  Reeve,  Dom.  Rel.  315.  See  also,  Darden  v.  Wyatt,  15  Ga.  414. 
In  the  present  case,  the  infants,  when  their  mother  died  and  thev  went 
to  the  home  of  their  paternal  grandmother,  were  under  ten  years  of 
age  ;  the  grandmother,  who  appears  to  have  been  their  only  surviving 
grandparent  and  tlieir  next  of  kin,  and  whose  only  living  child,  an  un- 
married daughter,  resided  with  her,  was  the  head  of  the  famih" ;  and 
upon  the  facts  agreed  it  is  evident  that  the  removal  of  the  infants  after 
the  death  of  both  parents  to  the  home  of  their  grandmother  in  Georgia 
was  with  Lamar's  consent.  Under  these  circumstances,  there  can  be 
no  doubt  that  by  taking  up  their  residence  with  her,  the}'  acquired  her 
domicile  in  that  State  in  1859,  if  their  domicile  was  not  already  there.^ 

^  The  domicile  of  an  infant  follows  tliat  of  his  father:  Metcalf  v.  Lowther,  56  Ala. 
312  ;  Kennedy  v.  Ryall,  67  N.  Y.  379  ;  and  so  long  as  the  infant  is  not  emancipated 
ho  can  obtain  no  other  domicile,  though  living  away  from  his  father's  home  :  Wheeler 
I'.  Burrow,  18  Ind.  14  ;  even  if  he  has  run  away  from  home  :  Bangor  v.  Readfield,  32 
Me.  60  ;  or  has  been  bound  out  to  service  by  the  public  authorities  :  Oldtown  v.  Fal- 
mouth, 40  Me.  106. 

Upon  the  death  of  the  fatlier,  the  mother's  domicile  ordinarily  becomes  that  of  the 
minor,  and  if  she  buingsujjuns  changes  her  domicile  that  of  the  child  follows  ;  subject 
perhaps  to  the  condition  that  the  change  be  made  bona  Jide,  and  not  for  the  purpose  of 
securing  an  advantage  at  the  expense  of  the  child  or  the  child's  estate.  Potinger  v. 
Wiglitman,  3  Mer.  67;  Brown  v.  Lynch,  2  Bradf.  214  ;  School  Directors  v.  James,  2 
W.  &  S.  568.  A  posthumous  child,  therefore,  takes  the  domicile  of  the  mother  at  its 
birth  :  Watson  v.  Bondurant,  30  La.  Ann.  1303  {semhle).  I-f,  however,  the  mother 
marries  again,  since  she  is  no  longer  sui  juris,  she  cannot  affect  the  domicile  of  the 
minor  :  School  Directors  v.  James,  2  W.  &  S.  568  ;  Allen  v.  Thomason,  11  Humph. 


SECT.    I.]  SHUTE   V.    SAEGENT.  77 

SHUTE  V.  SARGENT. 
Supreme  Court  of  New  Hampshire.    1892. 

[Reported  67  New  Havipshire,  305.] 

Blodgett,  J.^  The  maxim  that  the  domicile  of  the  wife  follows  that 
of  her  husband  "  results  from  the  general  principle  that  a  person  who  is 
under  the  power  and  authority  of  another  possesses  no  right  to  choose 
a  domicile.'"  Story,  Confl.  Laws,  s.  46.  ''By  marriage,  husband  and 
wife  become  one  person  in  law,  —  that  is,  the  very  being  or  legal  exist- 
ence of  the  wife  is  suspended  during  the  marriage,  or  at  least  is  incor- 
porated and  consolidated  into  that  of  the  husband,  under  whose  wing, 
protection,  and  cover  she  performs  everything."  1  Bl.  Com.  442.  Such 
being  the  common-law  status  of  the  wife,  her  domicile  necessarily  fol- 

536  {contra,  Succession  of  Lewis,  10  La.  Ann.  789  ;  and  see  Wheeler  v.  Hollis,  19  Tex. 
522) ;  and  therefore  if  the  mother  remarries  before  the  birth  of  the  posthumous  child, 
the  child  takes  the  domicile  of  its  mother  before  the  second  marriage  :  Oxford  v. 
Bethany,  19  Conn.  229. 

An  infant  does  not  get  the  domicile  of  an  appointed  guardian  ex  officio  if  the  infant 
actually  lives  elsewhere.  Louisville  v.  Sherley,  80  Ky.  71  ;  School  Directors  v.  James, 
2  W.  &  S.  568 ;  Petigrn  v.  Ferguson,  6  Rich.  Eq.  378.  The  guardian  may,  however, 
change  the  infant's  domicile  by  changing  the  actual  home  of  the  infant  within  the 
State.  Kirkland  v.  Whately,  4  All.  462 ;  contra,  Marheineke  v.  Grothaus,  72  Mo. 
204.  He  cannot,  however,  change  the  ward's  domicile  outside  the  State,  since  his 
authority  over  the  ward's  person  ceases  at  the  State  line.  Douglas  v.  Douglas,  L.  R. 
12  Eq.  617,  625 ;  Robins  v.  Weeks,  5  Mart.  N.  s.  379  ;  Traramell  v.  Trammell,  20  Tex. 
406  ;  but  see  Wood  v.  Wood,  5  Paige,  596,  605;  Wheeler  v.  Hollis,  19  Tex.  522.  A 
fortiori  such  a  change  cannot  be  made  without  the  guardian's  consent.  Hiestand  v. 
Kuns,  8  Blackf.  345  ;  Munday  v.  Baldwin,  79  Ky.  121. 

An  emancipated  minor  may  acquire  a  new  domicile  by  his  own  will  :  Lubec  v.  East- 
port,  3  Me.  220  ;  and  such  minor  no  longer  shares  a  new  domicile  acquired  by  the 
father :  Lowell  v.  Newport,  66  Me.  78  ;  or  by  the  mother,  after  the  father's  death : 
Dennysville  v.  Trescott,  30  Me.  470  ;  Charlestown  v.  Boston,  13  Mass.  469.  After 
emancipation  the  father  cannot  change  the  child's  domicile.  In  re  Yance,  92  Cal.  195, 
28  Pac.  229. 

In  Georgia,  where  a  guardian  has  no  right  to  restrain  the  person  of  a  ward  twenty 
years  old,  such  a  ward  may  acquire  a  domicile  by  his  own  choice.     Roberts  v.  Walker, 

18  Ga.  5. 

An  apprentice  takes  the  domicile  of  his  master.     Maddox  v.  S.,  32  Ind.  111. 

An  insane  person,  though  under  guardianship,  may  yet  change  his  domicile  if  he  in 
fact  retains  sufficient  power  of  will.  Culver's  Appeal,  48  Conn.  165;  Concord  v. 
Rumney,  45  N.  H.  423;  Mowry  v.  Latham,  17  R.  I.  480,  23  Atl.  13.  A  person  non 
compos  from  birth,  continuing  to  live  in  his  father's  family  after  reaching  his  major- 
ity, follows  his  father's  domicile.  Sharpe  v.  Crispin,  L.  R.  1  P.  &  D.  611 ;  Monroe  i;. 
Jackson,  55  Me.  55  ;  Upton  v.  Northbridge,  15  Mass.  237.  If  such  a  jierson  has  an 
appointed  guardian,  the  latter  may  change  the  domicile  of  the  ward  into  his  own  fam- 
ily by  making  him  an  inmate  of  it  :  Holyoke  v.  Haskins,  5  Pick.  20  ;  Jackson  v.  Polk, 

19  Ohio  S.  28  :  or  even,  it  has  been  held,  to  a  new  independent  home  :  Anderson  v 
Anderson,  42  Vt.  350.  It  has  been  held  that  if  one  non  compos  becomes  emancipated 
by  the  death  of  his  parents  and  the  failure  of  appointment  of  a  guardian,  he  may  gain 
a  residence  where  he  actually  lives.     Gardiner  v.  Farmington,  45  Me.  537.  —  Ed. 

1  The  opinion  onlv  is  given  :  it  sufficiently  states  the  case.  —  Ed. 


78  SHUTE   V.    SARGENT.  [CHAP.    IL 

lowed  her  husband's,  and  the  maxim   applied  without  limitation  or 
qualification. 

But  the  common-law  theory  of  marriage  has  largely  ceased  to  obtain 
everywhere,  and  especially  in  this  State,  where  the  law  has  long  recog- 
nized the  wife  as  having  a  separate  existence,  separate  rights,  and 
separate  interests.  In  respect  to  the  duties  and  obligations  which  arise 
from  the  contract  of  marriage  and  constitute  its  object,  husband  and 
wife  are  still,  and  must  continue  to  be,  a  legal  unit ;  but  so  completely 
has  the  ancient  unity  become  dissevered,  and  the  theory  of  the  wife's 
servitude  superseded  by  the  theory  of  equality  which  has  been  estab- 
lished by  the  legislation  and  adjudications  of  the  last  half  century,  that 
she  now  stands,  almost  without  an  exception,  upon  an  equality  with 
the  husband  as  to  property,  torts,  contracts,  and  civil  rights.  Pub.  Sts., 
c.  176  ;  ib.,  c.  90,  s.  9  ;  Seaver  v.  Adams,  66  N.  H.  142,  143,  and  au- 
thorities cited.  And  since  the  law  puts  her  upon  an  equality,  so  that 
he  now  has  no  more  power  and  authority  over  her  than  she  has  over 
him,  no  reason  would  seem  to  remain  why  she  may  not  acquire  a  sepa- 
rate domicile  for  every  purpose  known  to  the  law.  (if,  however,  there 
are  exceptional  cases  when  for  certain  purposes  it  might  properly  be 
held  otherwise,  there  can  be  in  this  jurisdiction  no  reason  for  hglding 
that  when  the  husband  has  forfeited  his  marital  rights  by  his  misbe- 
havior, the  wife  may  not  acquire  a  separate  domicile,  and  exercise  the 
appertaining  rights  and  duties  of  citizenship  with  which  married  women 
have  become  invested.  ^  To  hold  otherwise  would  not  only  break  the 
line  of  consistency  and  progress  which  has  been  steadily  advanced  until 
the  ancient  legal  distinctions  between  the  sexes,  which  were  adapted  to 
a  condition  that  has  ceased  to  exist  and  can  never  return,  have  been 
largely  swept  away,  but  it  would  also  be  subversive  of  the  statutory 
right  of  voting  and  being  elected  to  office  in  educational  matters  which 
wives  now  possess  (Pub.  Sts.,  c.  90,  ss.  9,  14),  inasmuch  as  it  would 
compel  the  innocent  wife  to  reside  and  make  her  home  in  whatever 
voting  precinct  the  offending  husband  might  choose  to  fix  his  domicile, 
or  to  suffer  the  deprivation  of  the  elective  franchise  ;  and  if  he  should 
remove  his  domicile  to  another  State,  and  she  should  remain  here,  the 
exercise  of  all  her  rights  dependent  upon  domicile  would  be  similarly 
affected. 

Tiiis  cannot  be  the  law.  On  the  contrary,  the  good  sense  of  the 
thing  is,  that  a  wife  cannot  be  divested  of  the  right  of  suffrage,  or  be 
deprived  of  any  civil  or  legal  right,  by  the  act  of  her  husband  ;  and  so 
we  take  the  law  to  be.  Whenever  it  is  necessary  or  proper  for  her  to 
acquire  a  separate  domicile,  she  may  do  so.  This  is  the  rule  for  the 
purposes  of  divorce  (Payson  v.  Payson,  34  N.  H.  518;  Cheever  v. 
Wilson,  9  Wall.  108,  124;  Ditson  v.  Ditson,  4  R.I.  87,  107;  Harding 
V.  Alden,  9  Greenl.  140),  and  it  is  the  true  rule  for  all  purposes. 

Upon  these  views,  the  testatrix  was  domiciled  in  this  State  at  the 
time  of  her  decease,  and,  as  the  consequence,  distribution  of  her  estate 
ie  to  be  made  accordingly.     Goodall  v.  Marshall,  11  N.  H.  88;  Vande- 


SECT.    I.]       BERGXER   &   ENGEL    BREWING    CO.    V.    DREYFUS.  T9 

walker  v.  Rollins,  63  N.  II.  460,  463,  464.  The  rights  of  her  husband 
therein  are  not  affected  by  his  written  assent  to  the  will.  The  Massa- 
chusetts statute,  making  such  assent  binding,  has  no  extraterritorial 
force,  and  there  is  no  principle  upon  which  it  can  be  given  effect  in  this 
jurisdiction  without  violating  the  positive  enactments  of  our  statute 
relative  to  the  husband's  distributive  share  in  his  deceased  wife's  estate. 
Pub.  Sts.,  c.  195,  ss.  12,  13.  This  cannot  be  done.  If  the  result  shall 
be  to  give  to  this  husband  a  benefit  which  the  testatrix  did  not  intend 
he  should  receive,  and  which  in  justice  he  ought  not  to  have,  it  is  to  be 
regretted  ;  but  hard  cases  cannot  be  permitted  to  make  bad  equity  any 
more  than  bad  law.  Case  discharged^ 


BERGNER  &   ENGEL   BREWING   CO.    v.    DREYFUS. 

Supreme  Judicial  Court  of  Massachusetts.     1898. 

[Reported  172  Massachusetts,  154.] 

Holmes-  J.-  This  is  a  suit  b}-  a  Penns^'lvania  corporation  to  recover 
a  debt  for  goods  sold  and  delivered  Here.  The  only  defence  is  a  dis- 
charge in  insolvency  under  our  statutes,  which  of  course  commonly  is 
no  defence  at  all.  This  was  reaffirmed  unanimously  in  1890,  after  full 
consideration  of  the  objections  now  urged ;  and  it  was  decided  also, 
not  for  the  first  time,  that  the  general  language  of  the  insolvent  law 
was  not  intended  to  affect  access  to  Massachusetts  courts  by  a  local 
rule  of  procedure  unless  the  substantive  right  was  barred  by  the  dis- 
charge. Phoenix  National  Bank  v.  Batcheller,  151  Mass.  589.  The 
grounds  urged  for  an  exception  in  the  present  case  are :  that  the  plain- 
tiff, although  its  brewery  and  main  offices  are  in  Pennsylvania,  has  an 
office  in  Boston,  and  maintains  here  a  complete  outfit  fqr  the  distribu- 
tion of  its  products  ;  that  it  has  a  license  of  the  fourth  class  under  Pub. 
Sts.  c.  100,  §  10;  and  that  it  has  complied  with  the  laws  regulating 
foreign  corporations  doing  business  here,  including,  we  assume,  that 
which  requires  the  appointment  of  the  commissioner  of  corporations  its 
"  attorney  upon  whom  all  lawful  processes  in  any  action  or  proceed- 
ing against  it  may  be  served."  St.  1884,  c.  330,  §  1.  See  St.  1895, 
c.  157.  .  .  .  The  independent  ground  on  which  it  is  urged  that  the 
plaintiff  is  subject  to  the  insolvent  law  in  the  present  case  is  that  the 
plaintiff  is  domesticated  in  this  State,  as  shown  by  the  facts  above 
recited,  of  which  the  appointment  of  an  attorney  is  only  one.  The 
word  "  domesticated,"  which  was  used  in  the  argument  for  the  defend- 
ant, presents  no  definite  legal  conception  which  has  any  bearing  upon 
the  case.  We  presume  that  it  was  intended  to  convey  in  a  conciliatory 
form  the  notion  that  the  plaintiff  was  domiciled  here,  —  "  resident,"  in 

1  Ace.  In  re  Florance,  54  Hun,  328.  —  Ed. 

2  The  statement  of  facts  and  part  of  the  opinion  are  omitted.  —  Ed. 


80  BERGNER   &   ENGEL   BREWING   CO.    V.    DREYFUS.      [CHAP.  II. 

the  language  of  Pub.  Sts.  c.  157,  §  81,  — and  therefore  barred  by  the 
language  and  legal  operation  of  the  act.  It  could  not  be  contended 
that  the  corporation  was  a  citizen  of  Massachusetts.  In  such  sense  as 
it  is  a  citizen  of  any  State,  it  is  a  citizen  of  the  State  which  creates 
it  and  of  no  otlier.  But  there  are  even  greater  objections  to  a  double 
domicile  than  there  are  to  double  citizenship.  Under  the  law  as  it  has 
been,  a  man  might  find  himself  owing  a  double  allegiance  without  any 
choice  of  his  own.  But  domicile,  at  least  for  any  given  purpose,  is 
single  by  its  essence.  Dicey,  Confl.  of  Laws,  95.  A  corporation  does 
not  differ  from  a  natural  person  in  this  respect.  If  any  person,  natural 
or  artificial,  as  a  result  of  choice  or  on  technical  grounds  of  birth  or 
creation,  has  a  domicile  in  one  place,  it  cannot  have  one  elsewhere,  be- 
cause what  the  law  means  by  domicile  i^the  one  technically  pre-eminent 
headquarters,  which,  as  a  result  either  of  fact  or  of  fiction,  every  person 
is  compelled  to  have  in  order  that  by  aid  of  it  certain  rights  and  duties 
which  have  been  attached  to  it  by  the  law  may  be  determined.^)lt  is 
settled  that  a  corporation  has  its  domicile  in  the  jurisdiction  of  the 
State  which  created  it,  and  as  a  consequence  that  it  has  not  a  domicile 
anywhere  else.  >Boston  Investment  Co.  v.  Boston,  158  Mass.  461,  462, 
463  ;  Shaw  v.  Qnincy  Mining  Co.,  145  U.  S.  444,  450;  Martine  v.  In- 
ternational Ins.  Co.,  53  N.  Y.  339,  346.  The  so-called  modifications 
of  this  rule  by  statutes  like  the  act  of  1884  do  not  modify  it,  because 
jurisdiction  of  the  ordinary  personal  actions  does  not  depend  upon 
domicile,  but  only  upon  such  presence  within  the  jurisdiction  as  to  make 
service  possible.  See  In  re  Hohorst,  150  U.  S.  653.  But  the  operation 
of  our  insolvent  law  by  its  very  terms  may,  and  in  this  case  does,  de- 
pend upon  the  domicile  of  the  creditor,  and  as  there  can  be  no  doubt 
either  in  fact  or  in  law  that  the  plaintiff  was  domiciled  m  Pennsylvania 
in  such  a  sense  that  a  statute  like  Pub.  Sts.  c.  157,  §  1,  would  hit  it 
there,  it  cannot  have  been  domiciled  here  for  the  same  purpose  at  the 
same  time. 

Judgment  for  the  jylaintiff  affirmed} 
Field,  C.  J.,  dissenting. 

1  Ace.  G(;rmaiiia  F.  I.  Co.  v.  Francis,  11  Wall.  210  ;  Cook  v.  Hagpr,  3  Col.  386  ; 
Chafee  v.  Fourth  Nat.  Bank,  71  Me.  514  ;  B.  &  0.  R.  R.  v.  Glenn,  28  Md.  287- 

Dkia  in  the  P^nglish  cases  are,  however,  contra.  Newby  v.  Van  Oppen,  L.  R. 
7  Q.  B.  293  ;  Russell  v.  Cambefort,  23  Q.  B.  D.  526.  "I  think  that  this  company 
jnay  projx'rly  be  deemed  both  Scotch  and  English.  It  may,  for  purposes  of  juris' 
diction,  be  deemed  to  have  two  domiciles.  Its  business  is  necessarily  carried  on  by  ( 
agents,  and  I  do  not  know  why  its  domicile  should  be  considered  to  be  confined  to  the 
place  where  the  goods  are  manufactured.  The  business  transacted  in  Engbind  is  very 
extensive.  The  ])laces  of  lousiness  may,  for  the  purposes  of  jurisdiction,  properly  be 
deemed  the  domicile."  —  Lord  St.  Leonards  in  Carron  Iron  Co.  v.  Maclaren,  5  H.  L.  C. 
416,  449.  —  Ei). 

In  Martine  v.  International  L.  Ins.  Soc,  53  N.  Y.  339,  an  English  company  with  a 
permanent  general  agency  in  New  York  was  held,  as  to  l)usiness  done  through  such 
agency,  to  have,  in  time  of  war,  a  comiuercial  (though  not  an  ordinary  civil)  domicile 
ill  New  York. 


SECT.   II.]  HAYS  V.   PACIFIC   MAIL  STEAMSHIP  CO, 


SECTION  IL 

TAXATION. 


HAYS   V.   PACIFIC   MAIL   STEAMSHIP  CO. 

Supreme  Court  of  the  United  States.     1855. 
[Reported  17  Howard,  596.1 

Nelson,  J.  This  is  a  writ  of  error  to  tlie  District  Court  for  the 
Northern  District  of  California. 

The  suit  was  brought  in  the  District  Court  by  the  company,  to 
recover  back  a  sum  of  money  which  they  were  compelled  to  pay  to  the 
defendant,  as  taxes  assessed  in  the  State  of  California,  upon  twelve 
steamships  belonging  to  them,  which  were  temporarily  within  the  juris- 
diction of  the  State. 

The  complaint  sets  forth  that  the  plaintiffs  are  an  incorporated  com- 
pany by  the  laws  of  New  York  ;  that  all  the  stockholders  are  residents 
and  citizens  of  that  State  ;  that  the  principal  office  for  transacting  the 
business  of  the  company  is  located  in  the  city  of  New  York,  but,  for 
the  better  transaction  of  their  business,  they  have  agencies  in  the  city 
of  Panama,  New  Grenada,  and  in  the  city  of  San  Francisco,  Califor- 
nia ;  that  they  have,  also,  a  naval  dock  and  shipyard  at  the  port  of 
Benicia,  of  that  State,  for  furnishing  and  repairing  their  steamers  ; 
that,  on  the  arrival  at  the  port  of  San  Francisco,  they  remain  no  longer 
than  is  necessary  to  land  their  passengers,  mails,  and  freight,  usually 
done  in  a  day ;  they  then  proceed  to  Benicia,  and  remain  for  repairs 
and  refitting  until  the  commencement  of  the  next  voyage,  usually  some 
ten  or  twelve  days ;  that  the  business  in  which  they  are  engaged  is  in 
the  transportation  of  passengers,  merchandise,  treasure,  and  the 
United  States  mails,  between  the  city  of  New  York  and  the  city 
of  San  Francisco,  by  way  of  Panama,  and  between  San  Francisco 
and  diff'erent  ports  in  the  Territory  of  Oregon  ;  that  the  company  are 
sole  owners  of  the  several  vessels,  and  no  poi'tion  of  the  interest  is 
owned  by  citizens  of  the  State  of  California ;  that  the  vessels  are  all 
ocean  steamships,  employed  exclusively  in  navigating  the  waters  of  the 
ocean  ;  that  all  of  them  are  duly  registered  at  the  custom-house  in  New 
York,  where  the  owners  reside  ;  that  taxes  have  been  assessed  upon  all 
the  capital  of  the  plaintiffs  represented  by  the  steamers  in  the  State  of 
New  York,  under  the  laws  of  that  State,  ever  since  they  have  been 
employed  in  the  navigation,  down  to  the  present  time;  that  the  said 
steamships  have  been  assessed  in  the  State  of  CaUfornia  and  county  of 
San  Francisco,  for  the  year  beginning  1st  July,  1851,  and  ending  30th 
June,  1852,  claiming  tlie  assessment  as  annually  due,  under  an  act  of 


82  HAYS    V.    PACIFIC    MAIL   STEAMSHIP    CO.  [CHAP.  H. 

the  legislature  of  the  State ;  that  the  taxes  assessed  amount  to 
$11,962.50,  and  were  paid  under  protest,  after  one  of  the  vessels  was 
advertised  for  sale  b}-  the  defendant,  in  order  to  prevent  a  sale  of  it. 

To  this  complaint  the  defendant  demurred,  and  the  court  below  gave 
judgment  for  the  plaintiffs. 

By  the  3d  section  of  the  Act  of  Congress  of  31st  December,  1792,  it 
is  provided  that  ever}^  ship  or  vessel,  except  as  thereafter  provided, 
shall  be  registered  by  the  collector  of  the  district,  in  which  shall  be 
comprehended  the  port  to  which  the  ship  or  vessel  shall  belong  at  the 
time  of  her  registry,  and  which  port  shall  be  deemed  to  be  that  at  or 
nearest  to  which  the  owner,  if  there  be  but  one,  or,  if  more  than  one, 
nearest  to  the  place  where  the  husband,  or  acting  and  managing  owner, 
usually  resides  ;  and  the  name  of  the  ship,  and  of  the  port  to  which 
she  shall  so  belong,  shall  be  painted  on  her  stern,  on  a  black  ground, 
in  white  letters  of  not  less  than  three  inches  in  length  ;  and  if  any  ship 
or  vessel  of  the  United  States  shall  be  found  without  having  her  name, 
and  the  name  of  the  port  to  which  she  belongs,  painted  in  the  manner 
mentioned,  the  owner  or  owners  shall  forfeit  fifty  dollars. 

And  by  the  Act  of  29th  July,  1850  (9  Stats,  at  Large,  440),  it  is 
provided  that  no  bill  of  sale,  mortgage,  or  conveyance  of  any  vessel 
shall  be  valid  against  anj'  person  other  than  the  grantor,  etc.,  and  per- 
sons having  actual  notice,  unless  such  bill  of  sale,  mortgage,  or  convey- 
ance be  recorded  in  the  office  of  the  collector  of  the  customs  where 
such  vessel  is  registered  or  enrolled. 

These  provisions,  and  others  that  might  be  referred  to,  very  clearly 
indicate  that  the  domicile  of  a  vessel  that  requires  to  be  registered,  if 
we  mav  so  speak,  or  home  port,  is  the  port  at  which  she  is  registered, 
and  which  must  be  the  nearest  to  the  place  where  the  owner  or  owners 
reside.  In  this  case,  therefore,  the  home  port  of  the  vessels  of  the 
plaintiffs  was  the  port  of  New  York,  where  they  were  duly  registered, 
and  where  all  the  individual  owners  are  resident,  and  where  is  also  the 
princii)al  place  of  business  of  the  company  ;  and  where,  it  is  admitted, 
the  capital  invested  is  subject  to  State,  county,  and  other  local  taxes. 

These  ships  are  engaged  in  the  transportation  of  passengers,  mer- 
chandise, etc.,  between  the  city  of  New  York  and  San  Francisco,  by 
tlie  way  of  Panama,  and  between  San  Francisco  and  different  ports  in 
the  territory  of  Oregon.  They  are  thus  engaged  in  the  business  and 
commerce  of  the  country,  upon  the  highway  of  nations,  touching  at 
such  ports  and  places  as  these  great  interests  demand,  and  which  hold 
out  to  the  owners  sufficient  inducements  by  the  profits  realized  or  ex- 
pected to  be  realized.  And  so  far  as  respects  the  ports  and  harbors 
within  the  United  States,  they  are  entered  and  cargoes  discharged  or 
laden  on  board,  independently  of  any  control  over  them,  except  as  it 
respects  such  municipal  and  sanitary  regulations  of  the  local  authorities 
as  are  not  inconsistent  with  the  constitution  and  laws  of  the  general 
government,  to  which  belongs  the  regulation  of  commerce  with  foreign 
nations  and  between  the  States. 


SECT.    II.]  HAYS    V.    PACIFIC    MAIL    STEAMSHIP   CO.  83 

Now,  it  is  quite  apparent  tliat  if  the  State  of  California  possessed 
the  authority  to  impose  the  tax  in  question,  any  other  State  in  the 
Union,  into  the  ports  of  which  the  vessels  entered  in  the  prosecution  of 
their  trade  and  business,  might  also  impose  a  like  tax.  It  may  be 
that  the  course  of  trade  or  other  circumstances  might  not  occasion  as 
great  a  delay  in  other  ports  on  the  Pacific  as  at  the  port  of  San  Francisco. 
But  this  is  a  matter  accidental,  depending  upon  the  amount  of  business 
to  be  transacted  at  the  particular  port,  the  nature  of  it,  necessary 
repairs,  etc.,  which  in  no  respect  can  affect  the  question  as  to  the  situs 
of  the  property,  in  view  of  the  right  of  taxation  by  the  State. 

Besides,  whether  the  vessel,  leaving  her  home  port  for  trade  and 
commerce,  visits,  in  the  course  of  her  voyage  or  business,  several  ports, 
or  confines  her  operations  in  the  carrying  trade  to  one,  are  questions 
that  will  depend  upon  the  profitable  returns  of  the  business,  and  will 
furnish  no  more  evidence  that  she  has  become  a  part  of  the  personal 
property  within  the  State,  and  liable  to  taxation  at  one  port  than  at  the 
others.  She  is  within  the  jurisdiction  of  all  or  any  one  of  them  tempo- 
rarily, and  for  a  purpose  wholly  excluding  the  idea  of  permanently  abid- 
ing in  the  State,  or  changing  her  home  port.  Our  merchant  vessels 
are  not  unfrequently  absent  for  years,  in  the  foreign  carrying  trade, 
seeking  cargo,  carrying  and  unlading  it  from  port  to  port,  during  all 
the  time  absent ;  but  they  neither  lose  their  national  character  nor  their 
home  port,  as  insci'ibed  upon  their  stern. 

The  distinction  between  a  vessel  in  her  home  port  and  when  lying 
at  a  foreign  one,  or  in  the  port  of  another  State,  is  familiar  in  the 
admiralty  law,  and  she  is  subjected,  in  many  cases,  to  the  application 
of  a  different  set  of  principles.     7  Pet.  324  ;  4  Wheat.  438. 

We  are  satisfied  that  the  State  of  California  had  no  jurisdiction  over 
these  vessels  for  the  purpose  of  taxation ;  they  were  not,  properly, 
abiding  within  its  limits,  so  as  to  become  incorporated  with  the  other 
personal  property  of  the  State  ;  they  were  there  but  temporarily,  en- 
gaged in  lawful  trade  and  commerce,  with  their  situs  at  the  home  port, 
wliere  the  vessels  belonged,  and  where  the  owners  were  liable  to  be 
taxed  for  the  capital  invested,  and  where  the  taxes  had  been  paid. 

An  objection  is  taken  to  the  recovery  against  the  collector,  on  the 
ground,  mainly,  that  the  assessment  under  the  law  of  California,  by 
the  assessors,  was  a  judicial  act,  and  that  the  part}'  should  have  pur- 
sued his  remedy  to  set  it  aside  according  to  the  provisions  of  that  law. 

We  do  not  think  so.  The  assessment  was  not  a  judicial,  but  a 
ministerial  act,  and  as  the  assessors  exceeded  their  powers  in  making 
it,  the  officer  is  not  protected. 

The  payment  of  the  tax  was  not  voluntary,  but  compulsory,  to  pre- 
vent the  sale  of  one  of  the  ships. 

Our  conclusion  is,  that  the  judgment  of  the  court  below  is  right, 
and  should  be  aflSrmed. 


84  STATE   TAX    ON   FOKEIGN-HELD    BONDS.  [CHAP.  II. 


STATE  TAX  ON  FOREIGN-HELD  BONDS. 

Supreme  Court  of  the  United  States.     1873. 
[Reported  15  Wallace,  300.] 

Field,  J.  The  question  presented  in  this  case  for  our  determination 
is  whether  the  eleventh  section  of  the  Act  of  Pennsylvania  of  Ma}^,  1868, 
so  far  as  it  applies  to  the  interest  on  bonds  of  the  railroad  company, 
made  and  payable^out  of  the  State,  issued  to  and  held  by  non-residents 
of  the  State,  citizens  of  other  States,  is  a  valid  and  constitutional  exer- 
cise of  the  taxing  power  of  the  State,  or  whether  it  is  an  interference, 
under  the  name  of  a  tax,  with  the  obligation  of  the  contracts  between 
the  non-resident  bondholders  and  the  corporation.  If  it  be  the  former, 
this  court  cannot  arrest  the  judgment  of  the  State  court ;  if  it  be  the 
latter,  the  alleged  tax  is  illegal,  and  its  enforcement  can  be  restrained. 

The  case  before  us  is  similar  in  its  essential  particulars  to  that  of  The 
Railroad  Company  v.  Jackson,  reported  in  7  Wallace.  There,  as  here, 
the  company  was  incorporated  by  the  legislatures  of  two  States,  Penn- 
S3'lvania  and  Maryland,  under  the  same  name,  and  its  road  extended  in 
a  continuous  line  from  Baltimore  in  one  State  to  Sunburj'  in  the  other. 
And  the  company  had  issued  bonds  for  a  large  amount,  drawing  inter- 
est, and  executed  a  mortgage  for  their  security  upon  its  entire  road,  its 
franchises  and  fixtures,  including  the  portion  lying  in  both  States. 
Coupons  for  the  different  instalments  of  interest  were  attached  to  each 
bond.  There  was  no  apportionment  of  the  bonds  to  any  part  of  the 
road  lying  in  either  State.  The  whole  road  was  bound  for  each  bond. 
The  law  of  Pennsylvania,  as  it  then  existed,  imposed  a  tax  on  monej^ 
owing  b}'  solvent  debtors  of  three  mills  on  the  dollar  of  the  principal, 
payable  out  of  the  interest.  An  alien  resident  in  Ireland  was  the  holder 
of  some  of  the  bonds  of  the  railroad  company,  and  when  he  presented 
his  coupons  for  the  interest  due  thereon,  the  company  claimed  the  right 
to  deduct  the  tax  imposed  by  the  law  of  Pennsylvania,  and  also  an  al- 
leged tax  to  the  United  States.  The  non-resident  refused  to  accept  the 
interest  with  tiiesc  deductions,  and  brought  suit  for  the  whole  amount 
in  the  Circuit  Court  of  the  United  States  for  the  District  of  Maryland. 
That  court,  the  chief  justice  presiding,  instructed  the  jury  that  if  the 


SECT.   II.]  STATE    TAX    ON    FOREIGN-HELD   BONDS.  85 

plaintiff,  when  he  purchased  the  bonds,  was  a  British  subject,  resident 
in  Ireland,  and  still  resided  there,  he  was  entitled  to  recover  the  amount 
of  the  coupons  without  deduction.  The  verdict  and  judgment  were  in 
accordance  with  this  instruction,  and  the  case  was  brought  here  for 
review. 

This  court  held  that  the  tax  under  the  law  of  Pennsylvania  could  not 
be  sustained,  as  to  permit  its  deduction  from  the  coupons  held  by  the 
plaintiff  would  be  giving  effect  to  the  acts  of  her  legislature  upon  prop- 
erty and  effects  lying  beyond  her  jurisdiction.  The  reasoning  by  which 
the  learned  justice,  who  delivered  the  opinion  of  the  court,  reached  this 
conclusion,  ma}'  be  open,  perhaps,  to  some  criticism.  It  is  not  per- 
ceived how  the  fact  that  the  mortgage  given  for  the  security  of  the  bonds 
in  that  case  covered  that  portion  of  the  road  which  extended  into  Mary- 
land could  affect  the  liability  of  the  bonds  to  taxation.  If  the  entire 
road  upon  which  the  mortgage  was  given  had  been  in  another  State,  and 
the  bonds  had  been  held  b}'  a  resident  of  Penns3'lvania,  they  would  have 
been  taxable  under  her  laws  in  that  State.  It  was  the  fact  that  the  bonds 
were  held  by  a  non-resident  which  justified  the  language  used,  that  to 
permit  a  deduction  of  the  tax  from  the  interest  would  be  giving  effect 
to  the  laws  of  Pennsylvania  upon  propert}'  bej'ond  her  jurisdiction,  and 
not  the  fact  assigned  In-  the  learned  justice.  The  decision  is,  neverthe- 
less, authority  for  the  doctrine  that  property  lying  beyond  the  jurisdic- 
tion of  the  State  is  not  a  subject  upon  which  her  taxing  power  can  be 
legitimately  exercised.  Indeed,  it  would  seem  that  no  adjudication 
should  be  necessary  to  establish  so  obvious  a  proposition. 

The  power  of  taxation,  however  vast  in  its  character  and  searching  in 
its  extent,  is  necessaril}'  limited  to  subjects  within  the  jurisdiction  of  the 
State.  These  sul)jects  are  persons,  property,  and  business.  Whatever 
form  taxation  may  assume,  whether  as  duties,  imposts,  excises,  or  li- 
censes, it  must  relate  to  one  of  these  subjects.  It  is  not  possible  to 
conceive  of  any  other,  though  as  applied  to  them,  the  taxation  may  be 
exercised  in  a  great  variety  of  vrays.  It  may  touch  property  in  every 
shape,  in  its  natural  condition,  in  its  manufactured  form,  and  in  its  va- 
rious transmutations.  And  the  amount  of  the  taxation  may  be  deter- 
mined b}-  the  value  of  the  pi'operty,  or  its  use,  or  its  capacit}',  or  its 
productiveness.  It  ma}'  touch  business  in  the  almost  infinite  forms  in 
which  it  is  conducted,  in  professions,  in  commerce,  in  manufactures, 
and  in  transportation.  Unless  restrained  b}'  provisions  of  the  Federal 
Constitution,  the  power  of  the  State  as  to  the  mode,  form,  and  extent 
of  taxation  is  unlimited,  where  the  subjects  to  which  it  applies  a^e  within 
her  jurisdiction. 

Corporations  may  be  taxed,  like  natural  persons,  upon  their  property 
and  business.  But  debts  owing  by  corporations,  like  debts  owing  by 
individuals,  are  not  propertv  of  the  debtors,  in  any  sense  ;  they  are 
obligations  of  the  debtors,  and  only  possess  value  in  the  hands  of  the 
creditors.  With  them  they  are  propei'ty,  and  in  their  hands  they  may 
be  taxed.     To  call  debts  property  of  the  debtors  is  simply  to  misuse 


86  STATE   TAX   ON   FOREIGN-HELD   BONDS.  [CHAP.   IL 

terms.  All  the  property  there  can  be  in  the  nature  of  things  in  debts 
of  corporations,  belongs  to  the  creditors,  to  whom  the}'  are  payable,  and 
follows  their  domicile,  wherever  that  may  be.  Their  debts  can  have  no 
locality  separate  from  the  parties  to  whom  they  are  due.  This  principle 
might  be  stated  in  many  different  ways,  and  supported  by  citations  from 
numerous  adjudications,  but  no  number  of  authorities,  and  no  forms  of 
expression  could  add  anything  to  its  obvious  truth,  whicli  is  recognized 
upon  its  simple  statement. 

The  bonds  issued  by  the  railroad  company  in  this  case  are  undoubt- 
edly property,  but  property  in  the  hands  of  the  holders,  not  property  of 
the  obligors.  So  far  as  they  are  held  by  non-residents  of  the  State, 
they  are  property  beyond  the  jurisdiction  of  the  State.  The  law  which 
requires  the  treasurer  of  the  company  to  retain  five  per  cent  of  the  inter- 
est due  to  the  non-resident  bondliolder  is  not,  therefore,  a  legitimate 
exercise  of  the  taxing  power.  It  is  a  law  which  interferes  between  the 
company  and  the  bondholder,  and  under  the  pretence  of  levying  a  tax 
commands  the  compan}'  to  withhold  a  portion  of  the  stipulated  interest 
and  pay  it  over  to  the  State.  It  is  a  law  which  thus  impairs  the  obli- 
gation of  the  contract  between  the  parties.  The  obligation  of  a  contract 
depends  upon  its  terms  and  the  means  which  the  law  in  existence  at  the 
time  affords  for  its  enforcement.  A  law  which  alters  the  terms  of  a  con- 
tract by  imposing  new  conditions,  or  dispensing  with  those  expressed, 
is  a  law  which  impairs  its  obligation,  for,  as  stated  on  another  occasion, 
such  a  law  relieves  the  parties  from  the  moral  duty  of  performing  the 
original  stipulations  of  the  contract,  and  it  prevents  their  legal  enforce- 
ment. The  Act  of  Pennsylvania  of  May  1,  1868,  falls  within  this  de- 
scription. It  directs  the  treasurer  of  every  incorporated  company  to 
retain  from  the  interest  stipulated  to  its  bondholders  five  per  cent 
upon  every  dollar,  and  pa}'  it  into  the  treasury  of  the  Commonwealth. 
It  thus  sanctions  and  commands  a  disregard  of  the  express  provisions 
of  the  contracts  between  the  company  and  its  creditors.  It  is  onl}' 
one  of  many  cases  where,  under  the  name  of  taxation,  an  oppressive 
exaction  is  made  without  constitutional  warrant,  amounting  to  little 
less  than  an  arbitrary  seizure  of  private  property.  It  is,  in  fact,  a 
forced  contribution  levied  upon  property  held  in  other  States,  where  it 
is  subjected,  or  ma}'  be  subjected,  to  taxation  upon  an  estimate  of  its 
full  value. 

The  case  of  Maltby  v.  The  Reading  and  Columbia  Railroad  Com- 
pany, decided  by  the  Supreme  Court  of  Pennsylvania  in  186G,  was 
referred  to  by  the  Common  Pleas  in  support  of  its  ruling,  and  is 
relied  upon  by  counsel  in  support  of  the  tax  in  question.  The  decision 
in  that  case  does  go  to  the  full  extent  claimed,  and  holds  that  bonds  of 
corporations  held  by  non-residents  are  taxable  in  that  State.  But  it  is 
evident  from  a  perusal  of  the  opinion  of  the  court  that  the  decision 
proceeded  upon  tlie  idea  that  tlie  bond  of  the  non-resident  was  itself 
property  in  the  .State  because  secured  by  a  mortgage  on  property  there. 
"It  is  undoubtedly  true,"  said  the  court?  "  that  the  Legislature  of 


SECT.   II.]  STATE    TAX    ON    FOKEIGN-HELD    BONDS.  87 

Penns^'lvania  cannot  impose  a  personal  tax  upon  the  citizen  of  another 
State,  but  the  constant  practice  is  to  tax  propert}-  within  our  jurisdic- 
tion which  belongs  to  non-residents."  And  again:  "There  must  be 
jurisdiction  over  either  the  property  or  the  person  of  the  owner,  else 
the  power  cannot  be  exercised  ;  but  when  .the  property  is  within  our 
jurisdiction,  and  enjoj's  the  protection  of  our  State  government,  it  is 
justly  taxable,  and  it  is  of  no  moment  that  the  owner,  who  is  required 
to  pay  the  tax,  resides  elsewhere."  There  is  no  doubt  of  the  correct- 
ness of  these  views.  But  the  court  then  proceeds  to  state  that  the 
principle  of  taxation  as  the  correlative  of  protection  is  as  applicable 
to  a  non-resident  as  to  a  resident ;  that  the  loan  to  the  non-resident  is 
made  valuable  by  the  franchises  which  the  companj-  derived  from  the 
Commonwealth,  and  as  an  investment  rests  upon  State  authority,  and, 
therefore,  ought  to  contribute  to  the  support  of  the  State  government. 
It  also  adds  that,  though  the  loan  is  for  some  purposes  subject  to  the 
law  of  the  domicile  of  the  holder,  "•  yet,  in  a  very  high  sense,"  it  is 
also  property  in  Pennsylvania,  observing,  in  support  of  this  position, 
that  the  holder  of  a  bond  of  the  company  could  not  enforce  it  except 
in  that  State,  and  that  the  mortgage  given  for  its  security  was  upon 
property  and  franchises  within  her  jurisdiction.  The  amount  of  all 
which  is  this :  that  the  State  which  creates  and  protects  a  corporation 
ought  to  have  the  right  to  tax  the  loans  negotiated  by  it,  though  taken 
and  held  by  non-residents,  a  proposition  which  it  is  unnecessary  to  con- 
trovert. The  legality  of  a  tax  of  that  kind  would  not  be  questioned  if 
in  the  charter  of  the  company  the  imposition  of  the  tax  were  author- 
ized, and  in  the  bonds  of  the  company,  or  its  certificates  of  loan,  the 
liability  of  the  loan  to  taxation  were  stated.  The  tax  in  that  case 
would  be  in  the  nature  of  a  license  tax  for  negotiating  the  loan,  for  in 
whatever  manner  made  payable  it  would  ultimately  fall  on  the  company 
as  a  condition  of  effecting  the  loan,  and  parties  contracting  with  the 
companv  would  provide  for  it  by  proper  stipulations.  But  there  is 
nothing  in  the  observations  of  the  court,  nor  is  there  anything  in  the 
opinion,  which  shows  that  the  bond  of  the  non-resident  was  property 
in  the  State,  or  that  the  non-resident  had  any  property  in  the  State 
which  was  subject  to  taxation  within  the  principles  laid  down  by  the 
court  itself,  which  we  have  cited. 

The  property  mortgaged  belonged  entirely  to  the  company,  and  so 
far  as  it  was  situated  in  Pennsylvania  was  taxable  there.  If  taxation 
is  the  correlative  of  protection,  the  taxes  which  it  there  paid  were  the 
correlative  for  the  protection  which  it  there  received.  And  neither  the 
taxation  of  the  property,  nor  its  protection,  was  augmented  or  dimin- 
ished by  the  fact  that  the  corporation  was  in  debt  or  free  from  debt. 
The  property  in  no  sense  belonged  to  the  non-resident  bondholder  or 
to  the  mortgagee  of  the  company.  The  mortgage  transferred  no  title  ; 
it  created  only  a  lien  upon  the  property.  Though  in  form  a  convey- 
ance, it  was  both  at  law  and  in  equity  a  mere  security  for  the  debt. 
That  such  is  the  nature  of  a  mortgage  in  Pennsylvania  has  been  ir& 


88  STATE    TAX    ON   FOKEICxN-HELD    BONDS.  [CHAP.    IL 

quently  ruled  by  her  highest  court.  In  "Witmer's  Appeal,  45  Penn.  S. 
463,  the  court  said:  "  The  mortgagee  has  no  estate  in  the  land,  any 
more  than  the  judgment  creditor.  Both  have  liens  upon  it,  and  no 
more  than  liens."  And  in  that  State  all  possible  interests  in  lands, 
whether  vested  or  contingent,  are  subject  to  levy  and  sale  on  execution, 
yet  it  has  been  held,  on  the  ground  that  a  mortgagee  has  no  estate  in  the 
lands,  that  the  mortgaged  premises  cannot  be  taken  in  execution  for 
his  debt.  In  Rickert  u.  Madeira,  1  Rawle,  329,  the  court  said:  "A 
mortgage  must  be  considered  either  as  a  chose  in  action  or  as  giving 
title  to  the  land  and  vesting  a  real  interest  in  the  mortgagee.  In  the 
latter  case  it  would  be  liable  to  execution  ;  in  the  former  it  would  not, 
as  it  would  fall  within  the  same  reason  as  a  judgment  bond  or  simple 
contract.  If  we  should  consider  the  interest  of  the  mortgagee  as  a 
real  interest,  we  must  carry  the  principle  out  and  subject  it  to  a  dower 
and  to  the  lien  of  a  judgment ;  and  that  it  is  but  a  chose  in  action,  a 
mere  evidence  of  debt,  is  apparent  from  the  whole  current  of  decisions." 
Wilson  V.  Shoenberger's  Executors,  31  Penn.  S.  295. 

Such  being  the  character  of  a  mortgage  in  Pennsylvania,  it  cannot 
be  said,  as  was  justh*  observed  b}'  counsel,  that  the  non-resident  holder 
and  owner  of  a  bond  secured  by  a  mortgage  in  that  State  owns  an}' 
real  estate  there.  A  mortgage  being  there  a  mere  chose  in  action,  it 
onh'  confers  upon  the  holder,  or  the  party  for  whose  benefit  the  mort- 
gage is  given,  a  right  to  proceed  against  the  property  mortgaged,  upon 
a  given  contingenc}',  to  enforce,  by  its  sale,  the  payment  of  his  de- 
mand. This  right  has  no  localit}'  independent  of  the  party  in  whom  it 
resides.  It  may  undoubtedly  be  taxed  b}-  the  State  when  held  by  a 
resident  therein,  but  when  held  by  a  non-resident  it  is  as  much  be3'ond 
the  jurisdiction  of  the  State  as  the  person  of  the  owner. 

It  is  undoubtedU'  true  that  the  actual  .situs  of  personal  property 
which  has  a  visible  and  tangible  existence,  and  not  the  domicile  of  its 
owner,  will,  in  many  cases,  determine  the  State  in  which  it  maj'  be 
taxed.  The  same  thing  is  true  of  public  securities  consisting  of  State 
bonds  and  bonds  of  municipal  bodies,  and  circulating  notes  of  bank- 
ing institutions ;  the  former,  by  general  usage,  have  acquired  the  char- 
acter of,  and  are  treated  as,  property  in  the  place  where  they  are  found, 
though  removed  from  the  domicile  of  the  owner ;  the  latter  are  treated 
and  pass  as  money  wherever  they  are.  But  other  personal  property, 
consisting  of  bonds,  mortgages,  and  debts  generally,  has  no  situs 
independent  of  the  domicile  of  the  owner,  and  certainlv  can  have  none 
where  the  instruments,  as  in  the  present  case,  constituting  the  evi- 
dences of  debt,  are  not  separated  from  the  possession  of  the  owners. 

Cases  were  cited  b}-  counsel  on  the  argument  from  the  decisions  of 
the  highest  courts  of  several  States,  which  accord  with  the  views  we 
have  expressed.  In  Davenport  v.  The  Mississippi  and  Missouri  Rail- 
road Company,  12  Iowa,  539,  the  question  arose  before  the  Supreme 
Court  of  Iowa  whetlier  mortgages  on  property  in  that  State  held  by 
non-residents  could  be  taxed  under  a  law  which  provided  that  all  prop* 


SECT.    II.]  STATE    TAX    ON   FOEEIGN-HELD    BONDS.  89 

ert}',  real  and  personal,  within  the  State,  with  certain  exceptions  nol 
material  to  the  present  case,  should  be  subject  to  taxation,  and  the 
court  said :  — 

"  Both  in  law  and  equity  the  mortgagee  has  only  a  chattel  interest. 
It  is  true  that  the  situs  of  the  property-  mortgaged  is  within  the  juris- 
diction of  the  State,  but,  the  mortgage  itself  being  personal  propert}', 
a  chose  in  action  attaches  to  the  person  of  the  owner.  It  is  agreed  by 
the  parties  that  the  owners  and  holders  of  the  mortgages  are  non- 
residents of  the  State.  If  so,  and  the  propertj-  of  the  mortgage 
attaches  to  the  person  of  the  owner,  it  follows  that  these  mortgages 
are  not  property  within  the  State,  and  if  not  they  are  not  the  subject 
of  taxation." 

In  People  v.  Eastman,  25  Cal.  603,  the  question  arose  before  the  Su- 
preme Court  of  Caiiforiiia  whether  a  judgment  of  record  in  Mariposa 
Count}'  upon  the  foreclosure  of  a  mortgage  upon  property  situated  in 
that  county  could  be  taxed  there,  the  owner  of  the  judgment  being  a 
resident  of  San  Francisco,  and  the  law  of  California  requiring  all  prop- 
erty to  be  taxed  in  the  county  where  situated  ;  and  it  was  held  that  it 
was  not  taxable  there.  "The  mortgage,"  said  the  court,  "has  no 
existence  independent  of  the  thing  secured  by  it ;  a  payment  of  the 
debt  discharges  the  mortgage.  The  thing  secured  is  intangible,  and 
has  no  situs  distinct  and  apart  from  the  residence  of  the  holder.  It 
pertains  to  and  follows  the  person.  The  same  debt  may,  at  the  same 
time,  be  secured  by  a  mortgage  upon  land  in  every  county  in  the  State  ; 
and  if  the  mere  fact  that  the  mortgage  exists  in  a  particular  count}'  gives 
the  property  in  the  mortgage  a  situs  subjecting  it  to  taxation  in  that 
count}',  a  party,  without  further  legislation,  might  be  called  upon  to 
pay  the  tax  several  times,  for  the  lien  for  taxes  attaches  at  the 
same  time  in  every  county  in  the  State,  and  the  mortgage  in  one 
county  may  be  a  different  one  from  that  in  another  although  the  debt 
secured  is  the  same." 

Some  adjudications  in  the  Supreme  Court  of  Pennsylvania  were  also 
cited  on  the  argument,  which  appear  to  recognize  doctrines  inconsistent 
with  that  announced  in  Maltby  v.  Reading  and  Columbia  Railroad 
Company,  particularly  the  case  of  McKeen  v.  The  County  of  North- 
ampton, 49  Penn.  S.  519,  and  the  case  of  Short's  Estate,  16  Id.  63, 
but  we  do  not  deem  it  necessary  to  pursue  the  matter  further.  We 
are  clear  that  the  tax  cannot  be  sustained  ;  that  the  bonds,  being  held 
by  non-residents  of  the  State,  are  only  property  in  their  hands,  and 
that  they  are  thus  beyond  the  jurisdiction  of  the  taxing  power  of  the 
State.  Even  where  the  bonds  are  held  by  residents  of  the  State,  the 
retention  by  the  company  of  a  portion  of  the  stipulated  interest  can 
only  be  sustained  as  a  mode  of  collecting  a  tax  upon  that  species  of 
property  in  the  State.  When  the  property  is  out  of  the  State  there 
can  then  be  no  tax  upon  it  for  which  the  interest  can  be  retained. 
The  tax  laws  of  Pennsylvania  can  have  no  extraterritorial  operation ; 
nor  can  any  law  of  that  State,  inconsistent  with  the  terms  of  a  con- 


90  PULLMAN'S    PALACE-CAR   CO.    *.    PENNSYLVANIA.      [CIIAP.   IL 

tract,  made  with  or  payable  to  parties  out  of  the  State,  have  any  effect 
upon  the  contract  whilst  it  is  in  the  hands  of  such  parties  or  other  non- 
residents. The  extraterritorial  invalidity  of  State  laws  discharging  a 
debtor  from  his  contracts  with  citizens  of  other  States,  even  though 
made  and  payable  in  the  State  after  the  passage  of  such  laws,  has  been 
judicially  determined  by  this  court.  Ogden  u.  Saunders,  12  Wheaton, 
214  ;  Baldwin  v.  Hale,  1  Wallace,  223.  A  like  invalidity  must,  on 
similar  grounds,  attend  State  legislation  which  seeks  to  change  the 
obligation  of  such  contracts  in  any  particular,  and  on  stronger  grounds 
where  the  contracts  are  made  and  payable  out  of  the  State. 

Judgment  reversed,  and  the  cause  remanded  for  further  'proceed' 
iyigs,  in  couformity  tcith  this  opinion.} 
Davis,  Clifford,  Millek,  and  Hunt,  JJ.,  dissenting. 


PULLMAN'S   PALACE-CAR   CO.   v.   PENNSYLVANIA. 

Supreme  Court  of  the  United  States.     1891. 
[Reported  141  United  States,  18.] 

Gray,  J.^  Upon  this  writ  of  error,  whether  this  tax  was  in  accord- 
ance with  the  law  of  Pennsylvania,  is  a  question  on  which  the  decision 
of  the  highest  court  of  the  State  is  conclusive.  The  only  question  of 
which  this  court  has  jurisdiction  is  whether  the  tax  was  in  violation  of 
the  clause  of  the  Constitution  of  the  United  States  granting  to  Congress 
the  power  to  regulate  commerce  among  the  several  States.  The  plain- 
tiff in  error  contends  that  Its  ears  could  be  taxed  onlj'  in  the  State  of 
Illinois,  in  which  it  was  incorporated  and  had  its  principal  place  of 
business. 

No  general  principles  of  law  are  better  settled,  or  more  fundamental, 
than  that  the  legislative  power  of  every  State  extends  to  all  propert}' 
within  its  borders,  and  that  only  so  far  as  tlie  comity  of  that  State 
allows  can  such  property  be  affected  by  the  law  of  an}'  other  State. 
The  old  rule,  expressed  in  the  maxim  mobilia  sequu)itur 2)ersonam,  by 
which  personal  property*  was  regarded  as  subject  to  the  law  of  the  own- 
er's domicile,  grew  up  in  the  ISIiddle  Ages,  when  movable  property  con- 
sisted chiefly  of  gold  and  jewels,  which  could  be  easily  carried  by  the 
owner  from  place  to  place,  or  secreted  in  spots  known  only  to  himself. 
In  modern  times,  since  the  great  increase  in  amount  and  variety  of  per- 
sonal property  not  immediately  connected  with  the  person  of  the  owner, 
that  rule  has  yielded  more  and  more  to  the  lex  situs,  the  law  of  the 
place  where  the  property  is  kept  and  used.     Green  v.  Van  Buskirk,  5 

1  See  Tappan  v.  Merchants'  Nat.  Baiik,  19  Wall.  490  ;  Detroit  v.  Board  of  Assea- 
Bors,  91  Mich.  78.  —  P'd. 

2  Part  of  the  opinion  of  the  court  and  part  of  the  dissenting  opinion  are  omitted.— 
Ed. 


SECT.    II.]       PULLMAN'S    PAL.A.CE-CAK   CO.    V.    PENNSYLVANIA-  91 

Wall.  307,  and  7  Wall.  139  ;  Herve}-  v.  Rhode  Island  Locomotive  Works, 
93  U.  S.  664  ;  Harkness  v.  Russell,  118  U.  S.  663,  679  ;  AValworth  v. 
Harris,  129  U.  S.  355  ;  Story  on  Conflict  of  Laws,  §  550  ;  "Wharton  on 
Conflict  of  Laws,  §§  297-311.  As  observed  by  Mr.  Justice  Story,  in 
his  commentaries  just  cited,  ••  Although  movables  are  for  many  purposes 
to  be  deemed  to  have  no  situs,  except  that  of  the  domicile  of  the  owner, 
yet  this  being  but  a  legal  fiction,  it  yields,  whenever  it  is  necessary  for 
the  purpose  of  justice  that  the  actual  situs  of  the  thing  should  be  ex- 
amined. A  nation  within  whose  territory  any  personal  property  is 
aetuall}-  situate  has  an  entire  dominion  over  it  while  therein,  in  point 
of  sovereignty  and  jurisdiction,  as  it  has  over  immovable  property 
situate  there." 

For  the  purposes  of  taxation,  as  has  been  repeatedlj-  affirmed  by  this 
court,  personal  propertj-  may  be  separated  from  its  owner ;  and  he  may 
be  taxed,  on  its  account,  at  the  place  where  it  is,  although  not  the 
place  of  his  own  domicile,  and  even  if  he  is  not  a  citizen  or  a  resident 
of  the  State  which  imposes  the  tax.  Lane  County  v.  Oregon,  7  Wall. 
71,  77;  Railroad  Co.  v.  Pennsylvania,  15  Wall.  300,  323,  324,  328; 
Railroad  Co.  v.  Peniston,  18  Wall.  5,  29  ;  Tappau  v.  Merchants'  Bank, 
19  Wall.  490,  499  ;  State  Railroad  Tax  Cases,  92  U.  S.  575,  607,  608  ; 
Brown  v.  Houston,  114  U.  S.  622;  Coe  v.  Errol,  116  U.  S.  517,  524; 
Marye  v.  Baltimore  &  Ohio  Railroad,  127  U.  S.  117,  123. 

It  is  equally  well  settled  that  there  is  nothing  in  the  Constitution  or 
laws  of  the  United  States  which  prevents  a  State  from  taxing  personal 
property,  employed  in  interstate  or  foreign  commerce,  like  other  per- 
sonal property  within  its  jurisdiction.  .  .  . 

The  cars  of  this  company  within  the  State  of  Pennsylvania  are 
employed  in  interstate  commerce  ;  but  their  being  so  employed  does 
not  exempt  them  from  taxation  by  the  State  ;  and  the  State  has  not 
taxed  them  because  of  their  being  so  employed,  but  because  of  their 
being  within  its  territory  and  jurisdiction.  The  cars  were  continuously 
and  permanently  employed  in  going  to  and  fro  upon  certain  routes  of 
travel.  If  they  had  never  passed  be3'ond  the  limits  of  Pennsylvania,  it 
could  not  be  doubted  that  the  State  could  tax  them,  like  other  property, 
within  its  borders,  notwithstanding  they  were  emplo3-ed  in  interstate 
commerce.  The  fact  that,  instead  of  stopping  at  the  State  boundary, 
thev  cross  that  boundary  in  going  out  and  coming  back,  cannot  affect 
the  power  of  the  State  to  levy  a  tax  upon  them.  The  State,  having 
the  right,  for  the  purposes  of  taxation,  to  tax  any  personal  property 
found  within  its  jurisdiction,  without  regard  to  the  place  of  the  owner's 
domicile,  could  tax  the  specific  cars  which  at  a  given  moment  were 
within  its  borders.  The  route  over  which  the  cars  travel  extending 
be^-ond  the  limits  of  the  State,  particular  cars  may  not  remain  within 
the  State  ;  but  the  company'  has  at  all  times  substantially  the  same 
number  of  cars  within  the  State,  and  continuously  and  constantly  uses 
there  a  portion  of  its  property ;  and  it  is  distinctly  found,  as  matter  of 
fact,  that  the  company  continuously,  throughout  the  periods  for  which 


92  PULLMAN'S    PALACE-CAK   CO.    V.    PENNSYLVANIA.       [.CHAP.   II. 

these  taxes  were  levied,  carried  on  business  in  Pennsylvania,  and  had 
about  one  hundred  ears  within  the  State. 

The  mode  which  the  State  of  Pennsylvania  adopted,  to  ascertain  the 
proportion  of  the  company's  property  upon  which  it  should  be  taxed  in 
that  State,  was  by  taking  as  a  basis  of  assessment  such  proportion  of 
the  capital  stock  of  the  company  as  the  number  of  miles  over  which  it 
ran  cars  within  the  State  bore  to  the  whole  number  of  miles,  in  that 
and  other  States,  over  which  its  cars  were  run.  This  was  a  just  and 
equitable  method  of  assessment ;  and,  if  it  were  adopted  by  all  the 
States  through  which  these  cars  ran,  the  company  would  be  assessed 
upon  the  whole  value  of  its  capital  stock,  and  no  more. 

The  validity  of  this  mode  of  apportioning  such  a  tax  is  sustained  by 
several  decisions  of  this  court,  in  cases  which  came  up  from  the  Circuit 
Courts  of  the  United  States,  and  in  which,  therefore,  the  jurisdiction 
of  this  court  extended  to  the  determination  of  the  whole  case,  and  was 
not  limited,  as  upon  writs  of  error  to  the  State  courts,  to  questions 
under  the  Constitution  and  laws  of  the  United  States. 

In  the  State  Railroad  Tax  Cases,  92  U.  S.  575,  it  was  adjudged  that 
a  statute  of  Illinois,  by  which  a  tax  on  the  entire  taxable  property'  of  a 
railroad  corporation,  including  its  rolling  stock,  capital,  and  franchise, 
was  assessed  by  the  State  Board  of  Equalization,  and  was  collected  in 
each  municipalit}'  in  proportion  to  the  length  of  the  road  within  it,  was 
lawful,  and  not  in  conflict  with  the  Constitution  of  the  State  ;  and  Mr. 
Justice  Miller,  delivering  judgment,  said  :  — 

"Another  objection  to  the  sj'stem  of  taxation  by  the  State  is,  that 
the  rolling  stock,  capital  stock,  and  franchise  are  personal  property-, 
and  that  this,  with  all  other  personal  property,  has  a  local  situs  at  the 
principal  place  of  business  of  the  corporation,  and  can  be  taxed  by 
no  other  county,  cit}",  or  town,  but  the  one  where  it  is  so  situated. 
This  objection  is  based  upon  the  general  rule  of  law  that  personal 
property,  as  to  its  siiits,  follows  the  domicile  of  its  owner.  It  ma}'  be 
doubted  very  reasonably  whether  such  a  rule  can  be  applied  to  a  rail- 
road corporation  as  between  the  different  localities  embraced  by  its 
line  of  road.  But,  after  all,  the  rule  is  merely  the  law  of  the  State 
which  recognizes  it ;  and  when  it  is  called  into  operation  as  to  prop- 
erty located  in  one  State,  and  owned  by  a  resident  of  another,  it  is 
a  rule  of  comity  in  the  former  State  rather  than  an  absolute  principle 
in  all  cases.  Green  r.  Van  Buskirk,  5  Wall.  :)12.  Like  all  other  laws 
of  a  State,  it  is,  therefore,  sul)ject  to  legislative  repeal,  modification,  or 
limitation  ;  and  when  the  legislature  of  Illinois  declared  that  it  should 
not  prevail  in  assessing  personal  property  of  railroad  companies  for 
taxation,  it  simply  exercised  an  ordinary  function  of  legislation."  92 
U.  S.  607,  608. 

"  It  is  further  objected  that  the  railroad  track,  capital  stock,  and 
franchise  is  not  assessed  in  each  county  where  it  lies,  according  to  its 
vahie  there,  but  according  to  an  aggregate  value  of  the  whole,  on 
which  each  county,  city,  and  town  collects  taxes  according  to  the  lengtb 


SECT.    II.]       PULLMAN'S    PALACE-CAR   CO.    V.    PENNSYLVANIA. 


93 


of  the  track  within  its  limits."  "It  may  well  be  doubted  whether 
any  better  mode  of  determining  the  value  of  that  portion  of  the 
track  within  any  one  county  has  been  devised,  than  to  ascertain  the 
value  of  the  v/hole  road,  and  apportion  the  value  within  the  county  by 
its  relative  length  to  the  whole."  "  This  court  has  expressl}-  held  iu 
two  cases,  where  the  road  of  a  corporation  ran  througli  different  States, 
that  a  tax  upon  the  income  or  franchise  of  the  road  was  properly  ap- 
portioned by  taking  the  whole  income  or  value  of  the  franchise,  and 
the  length  of  the  road  within  each  State,  as  the  basis  of  taxation. 
Delaware  Railroad  Tax,  18  Wall.  206;  Erie  Railroad  v.  Pennsyl- 
vania,  21   Wall.  492."     92  U.   S.   608,   611. 

So  in  Western  Union  Telegraph  Co.  v.  Attorney-General  of  Massa- 
chusetts, 125  U.  S.  530,  this  court  upheld  the  validity  of  a  tax  im- 
posed by  the  State  of  Massachusetts  upon  the  capital  stock  of  a 
telegraph  company,  on  account  of  property  owned  and  used  by  it 
within  the  State,  taking  as  the  basis  of  assessment  such  proportion 
of  the  value  of  its  capital  stock  as  the  length  of  its  lines  within  the 
State  bore  to  their  entire  length  throughout  the  country. 

Even  more  in  point  is  the  case  of  Marye  v.  Baltimore  &  Ohio 
Railroad,  127  U.  S.  117,  in  which  the  question  was  whether  a  rail- 
road company  incorporated  by  the  State  of  Maryland,  and  no  part  of 
whose  own  railroad  was  within  the  State  of  Virginia,  was  taxable 
under  general  laws  of  Virginia  upon  rolling  stock  owned  by  the 
company,  and  employed  upon  connecting  railroads  leased  by  it  in 
that  State,  yet  not  assigned  permanently  to  those  roads,  but  used 
interchangeably  upon  them  and  upon  roads  in  other  States,  as  the 
company's  necessities  required.  It  was  held  not  to  be  so  taxable, 
solely  because  the  tax  laws  of  Virginia  appeared  upon  their  face  to 
be  limited  to  railroad  corporations  of  that  State;  and  Mr.  Justice 
Matthews,  delivering  the  unanimous  judgment  of  the  court,  said :  — 

"  It  is  not  denied,  as  it  cannot  be,  that  the  State  of  Virginia  has 
rightful  power  to  levy  and  collect  a  tax  upon  such  property  used  and 
found  within  its  territorial  limits,  as  this  property  was  used  and 
found,  if  and  whenever  it  may  choose,  by  apt  legislation,  to  exert  its 
authority  over  the  subject.  It  is  quite  true,  as  the  situs  of  the  Balti- 
more and  Ohio  Railroad  Company  is  in  the  State  of  Maryland,  that 
also,  upon  general  principles,  is  the  situs  of  all  its  personal  property; 
but  for  purposes  of  taxation,  as  well  as  for  other  purposes,  that  situs 
may  be  fixed  in  whatever  locality  the  property  may  be  brought  and 
used  by  its  owner  by  the  law  of  the  place  where  it  is  found.  If  the 
Baltimore  and  Ohio  Railroad  Company  is  permitted  by  the  State  of 
Virginia  to  bring  into  its  territory,  and  there  habitually  to  use  and 
employ  a  portion  of  its  movable  personal  property,  and  the  railroad 
company  chooses  so  to  do,  it  would  certainly  be  competent  and  legiti- 
mate for  the  State  to  impose  upon  such  property,  thus  used  and 
employed,  its  fair  share  of  the  burdens  of  taxation  imposed  upon 
similar  property  used  in  the  like  way  by  its  own  citizens.     And  such 


94  PULLMAN'S    PALACE    CAR   CO.    V.    PENNSYLVANIA.       [CHAP.    IL 

a  tax  might  be  properly  assessed  and  collected  in  cases  like  the 
present,  where  the  speeitic  and  individual  items  of  property  so  used 
and  emplo^'ed  were  not  continuously  the  same,  but  were  constantly 
changing,  according  to  the  exigencies  of  the  business.  In  such 
cases,  the  tax  might  be  fixed  by  an  appraisement  and  valuation  of 
the  average  amount  of  the  property  thus  habitually  used,  and  col- 
lected by  distraint  upon  any  portion  that  might  at  any  time  be 
found.  Of  course,  the  lawlessness  of  a  tax  upon  vehicles  of  trans- 
portation used  by  common  carriers  might  have  to  be  considered  in 
particular  instances  with  reference  to  its  operation  as  a  regulation 
of  commerce  among  the  States,  but  the  mere  fact  that  they  were 
employed  as  vehicles  of  transportation  in  the  interchange  of  inter- 
state commerce  would  not  render  their  taxation  invalid."  127  U.  S. 
123,  124. 

For  these  reasons,  and  upon  these  authorities,  the  court  is  of  opin- 
ion that  the  tax  in  question  is  constitutional  and  valid.  The  result 
of  holding  otherwise  would  be  that,  if  all  the  States  should  concur  in 
abandoning  the  legal  fiction  that  personal  property  has  its  situs  at 
the  owner's  domicile,  and  in  adopting  the  system  of  taxing  it  at  the 
place  at  which  it  is  used  and  by  whose  laws  it  is  protected,  property 
employed  in  any  business  requiring  continuous  and  constant  move- 
ment from  one  State  to  another  would  escape  taxation  altogether. 

Judgment  affirmed. 

Mr.  Justice  Bradley,  with  whom  concurred  Mr.  Justice  Field  and 
Mk.  Justice  Harlan,  dissenting. 

I  dissent  from  the  judgment  of  the  court  in  this  case,  and  will  state 
briefl}'  m}-  reasons.  I  concede  that  all  propertv,  personal  as  well  as 
real,  within  a  State,  and  belonging  there,  ma}-  be  taxed  by  the  State. 
Of  that  there  can  be  no  doubt.  But  where  propert}-  does  not  belong  in 
the  State  another  question  arises.  It  is  the  question  of  the  jurisdiction 
of  the  State  over  the  property.  It  is  stated  in  the  opinion  of  the  court 
as  a  fundamental  proposition  on  which  the  opinion  really  turns  that  all 
personal  as  well  as  real  property  within  a  State  is  subject  to  the  laws 
thereof.  I  conceive  that  that  proposition  is  not  maintainable  as  a  gen- 
eral and  absolute  proposition.  Amongst  independent  nations,  it  is 
true,  persons  and  propertj'  within  the  territory'  of  a  nation  are  subject 
to  its  laws,  and  it  is  responsible  to  other  nations  for  anj-  injustice  it 
may  do  to  the  persons  or  property  of  such  other  nations.  This  is  a 
rule  of  international  law.  But  the  States  of  this  government  are  not 
in(le[)endent  nations.  There  is  such  a  thing  as  a  Constitution  of  the 
United  States,  and  there  is  such  a  thing  as  a  government  of  the  United 
States,  and  there  are  many  things,  and  many  persons,  and  many  articles 
of  property  that  a  State  cannot  lay  the  weight  of  its  finger  upon,  because 
it  would  be  contrarj'  to  the  Constitution  of  the  United  States.  Cer- 
tainl}',  property  merely  carried  through  a  State  cannot  be  taxed  by  the 
State.     Such  a  tax  would  be  a  duty  —  which  a  State  cannot  impose 


i 


SECT.  II.]       PULLMAN'S    PALACE-CAR   CO.   V.    PENNSYLVANIA.  95 

If  a  drove  of  cattle  is  driven  through  Pennsjivauia  from  Illinois  to 
New  York,  for  the  purpose  of  being  sold  in  New  York,  whilst  in 
Pennsj'lvania  it  ma}'  be  subject  to  the  police  regulations  of  the  State, 
but  it  is  not  subject  to  taxation  there.  It  is  not  generall}-  subject  to  the 
laws  of  the  State  as  other  property  is.  So  if  a  train  of  cars  starts  at  Cin- 
cinnati for  New  York  and  passes  through  Pennsylvania,  it  may  be  subject 
to  the  police  regulations  of  that  State  whilst  within  it,  but  it  would  be 
repugnant  to  the  Constitution  of  the  United  States  to  tax  it.  We  have 
decided  this  very  question  in  the  case  of  State  Freight  Tax,  15  Wall. 
232.  The  point  was  directly  raised  and  decided  that  property  on  its 
passage  through  a  State  in  the  course  of  interstate  commerce  cannot  be 
taxed  by  the  State,  because  taxation  is  incidentally  regulation,  and  a 
State  cannot  regulate  interstate  commerce.  The  same  doctrine  was 
recognized  in  Coe  v.  Errol,    116  U.  S.  517. 

And  surel}'  a  State  cannot  interfere  with  the  officers  of  the  United 
States,  in  the  performance  of  their  duties,  whether  acting  under  the 
Judicial,  Military,  Postal,  or  Revenue  Departments.  They  are  entirely 
free  from  State  control.  So  a  citizen  of  the  United  States,  or  any  other 
person,  in  the  performance  of  an}-  duty,  or  in  the  exercise  of  any  privi- 
lege, under  the  Constitution  or  laws  of  the  United  States,  is  absolutely 
free  from  State  control  in  relation  to  such  matters.  So  that  the  general 
proposition,  that  all  persons  and  personal  property  within  a  State  is 
subject  to  the  laws  of  the  State,  unless  materially  modified,  cannot 
be  true. 

But,  when  personal  property  is  permanently-  located  within  a  State 
for  the  purpose  of  ordinary  use  or  sale,  then,  indeed,  it  is  subject  to  the 
laws  of  the  State  and  to  the  burdens  of  taxation  ;  as  well  when  owned 
b}-  persons  residing  out  of  the  State,  as  when  owned  by  persons  resid- 
ing in  the  State.  It  has  then  acquired  a  situs  in  th6  State  where  it  is 
found. 

A  man  residing  in  New  York  may  own  a  store,  a  factor}',  or  a  mine 
in  Alabama,  stocked  with  goods,  utensils,  or  materials  for  sale  or  use 
in  that  State.  There  is  no  question  that  the  situs  of  personal  property 
so  situated  is  in  the  State  where  it  is  found,  and  that  it  may  be  sub- 
jected to  double  taxation,  —  in  the  State  of  the  owner's  residence,  as  a 
part  of  the  general  mass  of  his  estate  ;  and  in  the  State  of  its  situs. 
Although  this  is  a  consequence  which  often  bears  hardl}'  on  the  owner, 
yet  it  is  too  firmly  sanctioned  by  the  law  to  be  disturbed,  and  no  remedy 
seems  to  exist  but  a  sense  of  equity  and  justice  in  the  legislatures  of  the 
several  States.  The  rule  would  undoubtedly  be  more  just  if  it  made  the 
property  taxable,  like  lands  and  real  estate,  only  in  the  place  where  it 
is  permanently  situated. 

Personal  as  well  as  real  propert}^  ma}'  have  a  situs  of  its  own,  inde- 
pendent of  the  owner's  residence,  even  wlien  employed  in  interstate  or 
foreign  commerce.  An  office  or  warehouse,  connected  with  a  steamship 
line,  or  with  a  continental  railway,  may  be  provided  with  furniture  and 
all  the  apparatus  and  appliances  usual  in  such  establishments.     Such 


96  PULLMAN'S    PALACE-CAR    CO.    V.    PENNSYLVANIA.       [CHAP.   IL 

propert}'  would  be  subject  to  the  lex  rei  sitce  and  to  local  taxation, 
though  solely  devoted  to  the  purposes  of  the  business  of  those  lines. 
But  the  ships  that  traverse  the  sea,  and  the  cars  that  traverse  the  land, 
in  those  lines,  being  tlie  vehicles  of  commerce,  interstate  or  foreign,  and 
intended  for  its  movement  from  one  State  or  country  to  another,  and 
having  no  fixed  or  permanent  situs  or  home,  except  at  the  residence  of 
the  owner,  cannot,  without  an  invasion  of  the  powers  and  duties  of  the 
federal  government,  be  subjected  to  the  burdens  of  taxation  in  the 
places  where  they  only  go  or  come  in  the  transaction  of  their  business, 
except  where  they  belong.  Haj's  v.  Pacific  Mail  Steamship  Co.,  17 
How.  596  ;  Morgan  v.  Parham,  16  Wall.  471  ;  Transportation  Co.  v. 
Wheeling,  99  U.  S.  273.  To  contend  that  there  is  any  difference  be- 
tween cars  or  trains  of  cars  and  ocean  steamships  in  this  regard,  is  to 
lose  sight  of  the  essential  qualities  of  things.  This  is  a  matter  that 
does  not  depend  upon  the  affirmative  action  of  Congress.  The  regula- 
tion of  ships  and  vessels,  by  act  of  Congress,  does  not  make  them  the 
instruments  of  commerce.  They  would  be  equally  so  if  no  such  affirma- 
tive regulations  existed.  For  the  States  to  interfere  with  them  in  either 
case  would  be  to  interfere  with,  and  to  assume  the  exercise  of,  that 
power  which,  by  the  Constitution,  has  been  surrendered  by  the  States 
to  the  government  of  the  United  States,  namely,  the  power  to  regulate 
commerce. 

Reference  is  made  in  the  opinion  of  the  court  to  the  case  of  Railroad 
Company'  v.  Maryland,  21  Wall.  456,  in  which  it  was  said  that  commerce 
on  land  between  the  different  States  is  strikingly  dissimilar  in  many  re- 
spects from  commerce  on  water ;  but  that  was  said  in  reference  to  the 
highwa3's  of  transportation  in  the  two  cases,  and  the  difference  of  control 
which  the  State  has  in  one  case  from  that  which  it  can  possibly  have  in 
the  other.  A  railroad  is  laid  on  the  soil  of  the  State,  by  virtue  of  au- 
thority granted  In-  the  State,  and  is  constantly  subject  to  the  police  juris- 
diction of  the  State ;  whilst  the  sea  and  navigable  rivers  are  high- 
ways created  by  nature,  and  are  not  subject  to  State  control.  The 
question  in  that  case  related  to  the  power  of  the  State  over  its  own 
corporation,  in  reference  to  its  rate  of  fares  and  the  remuneration  it 
was  required  to  pay  to  the  State  for  its  franchises,  — an  entirely  diflfer- 
ent  question  from  that  which  arises  in  the  present  case. 

Reference  is  also  made  to  expressions  used  in  the  opinion  in  Glouces- 
ter Ferry  Co.  v.  Pennsylvania,  114  U.  S.  196,  which,  standing  alone, 
would  seem  to  concede  the  right  of  a  State  to  tax  foreign  corporations 
engaged  in  foreign  or  interstate  commerce,  if  such  propert}'  is  within 
the  jurisdiction  of  the  State.  But  the  whole  scope  of  that  opinion  is  to 
show  that  neither  the  vehicles  of  commerce  coming  within  the  State, 
nor  the  capital  of  such  corporations,  is  taxable  there  ;  but  only  the 
proi)crty  having  a  sit//s  there,  as  the  wharf  used  for  landing  passengers 
and  freight.  The  entire  series  of  decisions  to  that  effect  are  cited  and 
relied  on. 

Of  course  I  do  not  mean  to  say  that  either  railroad  cars  or  ships  are 


SECT.   II.]      PULLMAN'S   PALACE-CAR    CO.    V.    PENNSYLVANIA  97 

to  be  free  from  taxation,  but  I  do  say  that  the}-  are  not  taxable  by  those 
States  in  which  the}-  are  onl}'  transiently  present  in  the  transaction  of 
their  commercial  operations.  A  British  ship  coming  to  the  harbor  of 
New  York  fi-om  Liverpool  ever  so  regularly  and  spending  half  its  time 
(when  not  on  the  ocean)  in  that  harbor,  cannot  be  taxed  by  the  State 
of  New  York  (harbor,  pilotage,  and  quarantine  dues  not  being  taxes). 
So  New  Y^ork  ships  plying  regularly  to  the  port  of  New  Orleans,  so 
that  one  of  the  line  may  be  always  lying  at  the  latter  port,  cannot  be 
taxed  by  the  State  of  Louisiana.  (See  cases  above  cited).  No  more 
can  a  train  of  cars  belonging  in  Pennsylvania,  and  running  regularly 
from  Philadelphia  to  New  Y'ork,  or  to  Chicago,  be  taxed  by  the  State 
of  New  York,  in  the  one  case,  or  by  Illinois,  in  the  other.  If  it  may 
lawfully  be  taxed  b}'  these  States,  it  may  lawfully  be  taxed  by  all  the 
intermediate  States,  New  Jersey,  Ohio,  and  Indiana.  And  then  we 
should  have  back  again  all  the  confusion  and  competition  and  State 
jealousies  which  existed  before  the  adoption  of  the  Constitution,  and 
for  putting  an  end  to  which  the  Constitution  was  adopted. 

In  the  opinion  of  the  court  it  is  suggested  that  if  all  the  States  should 
adopt  as  equitable  a  rule  of  proportioning  the  taxes  on  the  Pullman 
Company  as  that  adopted  by  Pennsylvania,  a  just  system  of  taxation 
of  the  whole  capital  stock  of  the  company  would  be  the  result.  Y"es, 
if — !  But  Illinois  ma}' tax  the  company  on  its  whole  capital  stock. 
Where  would  be  the  equity  then?  This,  however,  is  a  consideration 
that  cannot  be  compared  with  the  question  as  to  the  power  to  tax  at 
all,  —  as  to  the  relative  power  of  the  State  and  general  governments 
over  the  regulation  of  internal  commerce,  —  as  to  the  right  of  the  States 
to  resume  those  powers  which  have  been  vested  in  the  government  of 
the  United  States. 

It  seems  to  me  that  the  real  question  in  the  present  case  is  as  to  the 
situs  of  the  cars  in  question.  They  are  used  in  interstate  commerce, 
between  Pennsylvania,  New  York,  and  the  Western  States.  Their  legal 
sitics  no  more  depends  on  the  States  or  places  where  they  are  carried  in 
the  course  of  their  operations  than  would  that  of  any  steamboats  em- 
ployed by  the  Pennsylvania  Railroad  Company  to  carry  passengers  on 
the  Ohio  or  Mississippi.  If  such  steamboats  belonged  to  a  company 
located  at  Chicago,  and  were  changed  from  time  to  time  as  their  condi- 
tion as  to  repairs  and  the  convenience  of  the  owners  might  render 
necessary,  is  it  possible  that  the  States  in  which  they  were  running  and 
landing  in  the  exercise  of  interstate  commerce  could  subject  them  to 
taxation?  No  one,  I  think,  would  contend  this.  It  seems  to  me  that 
the  cars  in  question  belonging  to  the  Pullman  Car  Company  are  in  pre- 
cisely the  same  category. 


BLACKSTONE   V.   MILLER.  [CHAP.   IL 


BLACKSTONE  v.   MILLER. 

Supreme  Court  of  the  United  States.     1903. 

{Reported  188  U.  S.  189.] 

Holmes,  J.  This  is  a  writ  of  error  to  the  Surrogate's  Court  of  the 
county  of  New  York.  It  is  brought  to  review  a  decree  of  the  court, 
sustained  b^'  the  Appellate  Division  of  the  Supreme  Court,  69  App. 
Div.  127,  and  b}-  the  Court  of  Appeals,  171  N.  Y.  G82,  levying  a  tax 
on  the  transfer  b}'  will  of  certain  property  of  Timothy  B.  Blackstone, 
the  testator,  who  died  domiciled  in  Illinois.  The  property  consisted  of 
a  debt  of  $10,692.24,  due  to  the  deceased  by  a  firm,  and  of  the  net  sum 
of  §4,843,456.72,  held  on  a  deposit  account  by  the  United  States  Trust 
Company  of  New  York.  The  objection  was  taken  seasonably  upon  the 
record  tliat  the  transfer  of  this  property  could  not  be  taxed  in  New  York 
consistent!}'  with  the  Constitution  of  the  United  States. 

The  deposit  in  question  represented  the  proceeds  of  railroad  stock 
sold  to  a  syndicate  and  handed  to  the  Trust  Company,  which,  by  arrange- 
ment with  the  testator,  held  the  proceeds  subject  to  his  order,  paying 
interest  in  the  meantime.  Five  days'  notice  of  withdrawal  was  required, 
and  if  a  draft  was  made  upon  the  company,  it  gave  its  check  upon  one 
of  its  banks  of  deposit.  The  fund  had  been  held  in  this  way  from 
March  31,  1899,  until  the  testator's  death  on  May  26,  1900.  It  is 
probable,  of  course,  that  he  did  not  intend  to  leave  the  fund  there 
forever  and  that  be  was  looking  out  for  investments,  but  he  had  not 
found  them  when  he  died.  The  tax  is  levied  under  a  statute  impos- 
ing a  tax  "upon  the  transfer  of  any  propertv,  real  or  personal.  .  .  . 
2.  When  the  transfer  is  by  will  or  intestate  law,  of  property  within  the 
State,  and  the  decedent  was  a  non-resident  of  the  State  at  the  time  of 
his  death."  Laws  of  1896,  c.  908,  §  220,  amended,  Laws  of  1897, 
c.  284;  3  Birdseye's  Stat.  3d  ed.  1901,  p.  3592-  The  whole  succession 
has  been  taxed  in  Illinois,  the  New  York  deposit  being  included  in  the 
appraisal  of  the  estate.  It  is  objected  to  tlie  New  York  tax  that  the 
property  was  not  within  the  State,  and  that  the  courts  of  New  York 
had  no  jurisdiction  ;  that  if  the  property  was  within  the  State  it  was 
only  transitorily  there,  Hays  v.  Pacific  Mail  Steamship  Co.,  17  How. 
596,  599,  600,  that  the  tax  impairs  the  obligation  of  contracts,  that  it 
denies  full  faith  and  credit  to  the  judgment  taxing  the  inheritance  in 
Illinois,  that  it  deprives  the  executrix  and  legatees  of  privileges  and 
iiiiuninities  of  citizens  of  the  State  of  New  York,  and  that  it  is  contrary 
to  the  Fourteenth  Amendment. 

In  view  of  the  State  decisions  it  must  be  assumed  that  the  New  York 
statute  is  intended  to  reach  the  transfer  of  this  property  if  it  can  be 
reached.  New  Orleans  v.  Stempel,  175  U.S.  309,  316;  Morley  r. 
Lake  Shore  &,  Michigan  Southern  Railway  Co.,  146  U.  S.  162,  166. 
Wc  also  must  take  it  to  have  been  found  that  the  property  was  not  in 


SECT.  IL]  BLACKSTONE   V.   MILLER.  99 

transitu  in  such  a  sense  as  to  withdraw  it  from  the  power  of  the  State, 
if  otherwise  the  right  to  tax  the  transrer  belonged  to  the  State.  The 
propert}'  was  dela3'ed  within  the  jurisdiction  of  New  York  an  indefinite 
time,  which  had  lasted  for  more  than  a  year,  so  tliat  this  finding  at  least 
was  justified.  Kelley  v.  Ehoads,  188  U.  S.  1,  and  Diamond  Match  Co. 
V.  Village  of  Ontonagon,  188  U.  S.  84,  present  term.  Both  parties  agree 
with  the  plain  words  of  the  law  that  the  tax  is  a  tax  upon  the  transfer, 
not  upon  the  deposit,  and  we  need  spend  no  time  upon  that.  Therefore 
the  naked  question  is  whether  the  State  has  a  right  to  tax  the  transfer 
b\'  will  of  such  deposit. 

The  answer  is  somewhat  obscured  by  the  superficial  fact  that  New 
York,  like  most  other  States,  i-ecognizes  the  law  of  the  domicil  as  the 
law  determining  the  right  of  universal  succession.  The  domicil,  natu- 
rally, must  control  a  succession  of  that  kind.  Universal  succession  is 
the  artificial  continuance  of  the  person  of  a  deceased  by  an  executor, 
heir,  or  the  like,  so  far  as  succession  to  rights  and  obligations  is  con- 
cerned. It  is  a  fiction,  the  historical  origin  of  which  is  familiar  to 
scholars,  and  it  is  this  fiction  that  gives  whatever  meaning  it  has  to  the 
saying  mobilia  sequimtur  persoiiam.  But  being  a  fiction  it  is  not  al- 
lowed to  obscure  the  facts,  when  the  facts  become  important.  To  a 
considerable,  although  more  or  less  varying,  extent,  the  succession  de- 
termined b}'  the  law  of  the  domicil  is  recognized  in  other  jurisdictions. 
But  it  hardl}'  needs  illustration  to  show  that  the  recognition  is  limited 
b}'  the  polic}'  of  the  local  law.  Ancillary  administrators  pay  the  local 
debts  before  turning  over  the  residue  to  be  distributed,  or  distributing 
it  themselves,  according  to  the  rules  of  the  domicil.  The  title  of  the 
principal  administrator,  or  of  a  foreign  assignee  in  bankruptcy,  another 
tj'pe  of  universal  succession,  is  admitted  in  but  a  limited  way  or  not  at 
all.  See  Crapo  v.  Kelly,  16  Wall.  610;  Chipman  v.  Manufacturers' 
National  Bank,   156  Mass.  147,  148,  149. 

To  come  closer  to  the  point,  no  one  doubts  that  succession  to  a  tan- 
gible chattel  may  be  taxed  wherever  the  propert}'  is  found,  and  none 
the  less  that  the  law  of  the  situs  accepts  its  rules  of  succession  from  the 
law  of  the  domicil,  or  that  by  the  law  of  the  domicil  the  chattel  is  pavc 
of  a  universitas  and  is  taken  into  account  again  in  the  succession  tax 
there.  Eidman  v.  Martinez,  184  U.  S.  578,  586,  587,  592.  See  Mager 
V.  Grima,  8  How.  490,  493  ;  Coe  v.  Errol,  116  U.  S.  517,  524  ;  Pullman's 
Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  18,  22  ;  Magoun  v.  Illinois 
Trust  &  Savings  Bank,  170  U.  S.  283;  New  Orleans  t'.  Stempel,  175 
U.  S.  309  ;  Bristol  r.  Washington  County,  177  U.  S.  133;  and  for  state 
decisions  Matter  of  Estate  of  Romaine,  127  N.  Y.  80  ;  Callahan  r. 
Woodbridge.  171  Mass.  593;  Greves  t?.  Shaw,  173  Mass.  205;  Allen 
V.  National  State  Bank,  92  Md.  509. 

No  doubt  this  power  on  the  part  of  two  States  to  tax  on  different  and 
more  or  less  inconsistent  principles,  leads  to  some  hardship.  It  may 
be  regretted,  also,  that  one  and  the  same  State  should  be  seen  taxing 
on  the  one  hand  according  to  the  fact  of  power,  and  on  the  other,  at 


100  BJ.ACKSTONE   V.    MILLER.  [CHAP,  II, 

the  same  time,  according  to  the  fiction  that,  in  successions  after  death, 
mobilia  sequuntur  jpersonani  and  domicil  governs  the  whole.  But 
these  inconsistencies  infringe  no  rule  of  constitutional  law.  Coe  i/- 
Errol,  116  U.  S.  517,  524;  Knowlton  v.  Moore,  178  U.  S.  41. 

The  question,  then,  is  narrowed  to  whether  a  distinction  is  to  be  taken 
between  tangible  chattels  and  the  deposit  in  this  case.  There  is  no 
doubt  that  courts  in  New  York  and  elsewhere  have  been  loath  to  recog- 
nize a  distinction  for  taxing  purposes  between  what  commonly  is  called 
monej'  in  the  bank  and  actual  coin  in  the  pocket.  The  practical  simi- 
larit}-  more  or  less  has  obliterated  the  legal  difference.  Matter  of 
Houdayer,  150  N.  Y.  37  ;  New  Orleans  v.  Stempel,  175  U.  S.  309,  316  ; 
City  National  Bank  v.  Charles  Baker  Co.,  180  Mass.  40,  42.  In  view 
of  these  cases,  and  the  decision  in  the  present  case,  which  followed 
them,  a  not  ver}"  successful  attempt  was  made  to  show  that  by  reason 
of  the  facts  which  we  have  mentioned,  and  others,  the  deposit  here  was 
unlike  an  oidinary  deposit  in  a  bank.  We  shall  not  stop  to  discuss 
this  aspect  of  the  case,  because  we  prefer  to  decide  it  upon  a  broader 
view. 

If  the  transfer  of  the  deposit  necessaril}'  depends  upon  and  involves 
the  law  of  New  Y''ork  for  its  exercise,  or,  in  other  words,  if  the  transfer 
is  subject  to  the  power  of  the  State  of  New  York,  then  New  York  may 
subject  the  transfer  to  a  tax.  United  States  r.  Perkins,  163  U.  S.  625, 
628,  629  ;  McCulloch  v.  Maryland,  4  Wheat.  316,  429.  But  it  is  plain 
that  the  transfer  does  depend  upon  the  law  of  New  York,  not  because 
of  any  theoretical  speculation  concerning  the  whereabouts  of  the  debt, 
but  because  of  the  practical  fact  of  its  power  over  the  person  of  the 
debtor.  The  principle  has  been  recognized  b}'  this  court  with  I'egard 
to  garnishments  of  a  domestic  debtor  of  an  abs(Mit  defendant.  Chicago, 
Rock  Island  &  Pacific  Ry.  Co.  v.  Sturm,  174  U.  S.  710.  See  Wj^man  v. 
Ilalstead,  109  U.  S.  654.  What  gives  the  debt  validity?  Nothing  but 
the  fact  that  the  law  of  the  place  whore  the  debtor  is  will  make  him  pay. 
It  does  not  matter  that  the  law  would  not  need  to  be  invoked  in  the 
particular  case.  Most  of  us  do  not  commit  crimes,  yet  we  nevertheless 
are  subject  to  the  criminal  law,  and  it  affords  one  of  the  motives  for  our 
conduct.  So  again,  what  enables  any  other  than  the  ver}'  creditor  in 
proper  person  to  collect  the  debt?  The  law  of  the  same  place.  To  test 
it,  suppose  that  New  York  should  turn  back  the  current  of  legislation 
and  extend  to  debts  the  rule  still  applied  to  slander  that  actio  2)ersonalis 
moritur  cum  persona,  and  should  provide  that  all  debts  hereafter  con- 
tracted in  New  York  and  payable  there  sliould  be  extinguished  bj-  the 
death  of  either  party.  Leaving  constitutional  considerations  on  one 
side,  it  is  plain  tliat  the  right  of  the  foreign  creditor  would  be  gone. 

Power  over  the  person  of  the  debtor  confers  jurisdiction,  we  repeat. 
And  this  being  so  we  perceive  no  better  reason  for  denying  the  right  of 
New  York  to  impose  a  succession  tax  on  debts  owed  by  its  citizens  than 
upon  tangible  chattels  found  within  the  State  at  the  time  of  the  death. 
The  maxim  inohiUa  sequuntur  jjersofiam  has  no  more  truth  in  the  one 


SECT.  II.]  BLACKSTONE   V.   MILLER.  101 

case  than  in  the  other.     When  logic  and  the  policy  of  a  State  conflict 
with  a  fiction  due  to  historical  tradition,  the  fiction  must  give  way. 

There  is  no  conflict  between  our  views  and  the  point  decided  in  the 
case  reported  under  the  name  of  State  Tax  on  Foreign  Held  Bonds, 
15  Wall.  300.  The  taxation  in  that  case  was  on  the  interest  on  bonds 
held  out  of  the  State.  Bonds  and  negotiable  instruments  are  more  than 
merel}-  evidences  of  debt.  The  debt  is  inseparable  from  the  paper  which 
declares  and  constitutes  it,  b}'  a  tradition  which  comes  down  from  more 
archaic  conditions.  Bacon  y.  Hooker,  177  Mass.  335,337.  Therefore, 
considering  only  the  place  of  the  property,  it  was  held  that  bonds  held 
out  of  the  State  could  not  be  reached.  The  decision  has  been  cut  down 
to  its  precise  point  by  later  cases.  Savings  &>  Loan  Society  v.  Multno- 
mah County,  169  U.  S.  421,  428;  New  Orleans  v.  Stempel,  175  U.  S. 
309,  319,  320. 

In  the  case  at  bar  the  law  imposing  the  tax  was  in  force  before  the 
deposit  was  made,  and  did  not  impair  the  obligation  of  the  contract,  if 
a  tax  otherwise  lawful  ever  can  be  said  to  have  that  effect.  Pinne}"  v. 
Nelson,  183  U.  S.  144,  147.  The  fact  that  two  States,  dealing  each  with 
its  own  law  of  succession,  both  of  which  the  plaintiff  in  error  has  to  in- 
voke for  her  rights,  have  taxed  the  right  which  the}-  respectivel}'  confer, 
gives  no  cause  for  complaint  on  constitutional  grounds.  Coe  v.  Errol, 
116  U.  S.  517,  524 ;  Knowlton  v.  Moore,  178  U.  S.  53.  The  universal 
succession  is  taxed  in  one  State,  the  singular  succession  is  taxed  in 
another.  The  plaintiff  has  to  make  out  her  right  under  both  in  order 
to  get  the  mone}-.  See  Adams  r.  Batchelder,  173  Mass.  258.  The 
same  considerations  answer  the  argument  that  due  faith  and  credit 
are  not  given  to  the  judgment  in  Illinois.  The  tax  does  not  deprive 
the  plaintiff  in  error  of  any  of  the  privileges  and  immunities  of  the 
citizens  of  New  York.  It  is  no  such  deprivation  that  if  she  had 
Uved  in  New  York  the  tax  on  the  transfer  of  the  deposit  would  have 
been  part  of  the  tax  on  the  inheritance  as  a  whole.  See  Mager  v.  Grima, 
8  How.  490  ;  Brown  v.  Houston,  114  U.  S.  622,  635  ;  Wallace  v.  Myers, 
38  Fed.  Rep.  184.  It  does  not  violate  the  Fourteenth  Amendment. 
See  Magoun  v.  Illinois  Trust  &  Savings  Bank,  170  U.  S.  283.  Matters 
of  state  procedure  and  the  correctness  of  the  New  York  decree  or  judg- 
ment, apart  from  specific  constitutional  objections,  are  not  open  here. 
As  we  have  said,  the  question  whether  the  property  was  to  be  regarded 
as  in  transitu,  if  material,  must  be  regarded  as  found  against  the  plain- 
tiff in  error. 

Decree  affirmed. 

Mr.  Justice  White  dissents. 


102  UNION  TKANSIT  CO.  V.    KENTUCKY.       [CHAP.  II. 


UNION  TRANSIT  CO.  v.  KENTUCKY. 

Supreme  Court  of  the  United  States.     1905. 

[Reported  199  U.  S.  194.] 

Brown,  J.  In  this  case  the  question  is  directlj-  presented  whether 
a  corporation  organized  under  the  laws  of  Kentucky  is  subject  to  taxa- 
tion upon  its  tangible  personal  property-,  permanently  located  in  other 
States,  and  employed  there  in  the  prosecution  of  its  business.  Such 
taxation  is  charged  to  be  a  violation  of  the  due  process  of  law  clause  of 
the  Fourteenth  Amendment. 

Section  4020  of  the  Kentucky  statutes,  under  which  this  assessment 
was  made,  provides  that  ' '  All  real  and  personal  estate  within  this 
State,  and  all  personal  estate  of  persons  residing  in  this  State,  and  of  all 
corporations  organized  under  the  laws  of  this  State,  whether  the  prop- 
erty be  in  or  out  of  this  State,  .  .  .  shall  be  subject  to  taxation,  unless 
the  same  be  exempt  from  taxation  by  the  Constitution,  and  shall  be 
assessed  at  its  fair  cash  value,  estimated  at  the  price  it  would  bring  at 
a  fair  voluntary  sale." 

That  the  property  taxed  is  within  this  description  is  beyond  contro- 
versy. The  constitutionality  of  the  section  was  attacked  not  only  upon 
the  ground  that  it  denied  to  the  Transit  Company  due  process  of  law, 
but  also  the  equal  protection  of  the  laws,  in  the  fact  that  railroad  com- 
panies were  only  taxed  upon  the  value  of  their  rolling  stock  used  within 
the  State  which  was  determined  by  tlie  proportion  which  the  number  of 
miles  of  the  railroad  in  the  State  bears  to  the  whole  number  of  miles 
operated  by  the  company. 

The  power  of  taxation,  indispensable  to  the  existence  of  every  civil- 
ized government,  is  exercised  upon  the  assumption  of  an  equivalent 
rendered  to  tlie  taxpayer  in  the  protection  of  his  person  and  property,  in 
adding  to  the  value  of  such  property,  or  in  the  creation  and  maintenance 
of  i)ublic  conveniences  in  which  he  shares,  such,  for  instance,  as  roads, 
bridges,  sidewalks,  pavements,  and  schools  for  the  education  of  his  chil- 
dren. If  the  taxing  power  be  in  no  position  to  render  these  services,  or 
otherwise  to  benefit  tlie  person  or  property  taxed,  and  such  property  be 
wholly  within  the  taxing  power  of  another  State,  to  which  it  may  be  said 
to  owe  an  allegiance  and  to  wiiich  it  looks  for  protection,  the  taxation 
of  such  pro[)erty  witliin  the  doniicil  of  the  owner  partakes  rather  of  the 
nature  of  an  extortion  than  a  tax,  and  has  lieen  re[)oatedly  held  b}'  this 
court  to  be  beyond  the  i)o\verof  the  legislature  and  a  taking  of  property 
without  due  process  of  law.  Railroad  Company  r.  Jackson,  7  Wall. 
2G2  ;  State  Tax  on  Foreign-held  lionds,  15  Wall.  300 ;  Tap[)an  v. 
Merchants'  National  Bank,  11)  Wall.  490,  499;  Delaware  &c.  R.  R. 
Co.  r.  Pennsylvania,  I'JH  U.  S.  341,  3.58.  In  Chicago  \c.  R.  R.  Co.  r. 
Chicago,  166  U.  S.  226,  it  was  held,  after  full  consideration,  that  the 
taking  of  private  property  without  compensation  was  a  denial  of  due 


SECT.  II.]  UNION   TRANSIT    CO.    V.    KENTUCKY.  103 

process  within  the  Fourteenth  Amendment.  See  also  Davidson  v.  New 
Orleans,  96  U.  S.  97,  102  ;  Missouri  Pacific  Railway  v.  Nebraska,  164 
U.  S.  403,  417  ;  Mount  Hope  Cemetery  v.  Boston,  158  Mass.  509,  519. 

Most  modern  legislation  upon  this  subject  has  been  directed  (1)  to 
the  requirement  that  every  citizen  shall  disclose  the  amount  of  his  prop- 
erty subject  to  taxation  and  shall  contribute  in  proportion  to  such 
amount ;  and  (2)  to  the  voidance  of  double  taxation.  As  said  by  Adam 
Smith  in  his  "  Wealth  of  Nations,"  Book  V.,  Ch.  2,  Pt.  2,  "  the  sub- 
jects of  ever}-  State  ought  to  contribute  towards  the  support  of  the  gov- 
ernment as  nearly  as  possible  in  proportion  to  their  respective  abilities  ; 
that  is,  in  proportion  to  the  revenue  which  the}-  respectively  enjoy 
under  the  protection  of  the  State.  The  expense  of  government  to  the 
individuals  of  a  great  nation  is  like  the  expense  of  management  to  the 
joint  tenants  of  a  great  estate,  who  are  all  obliged  to  contribute  in  pro- 
portion to  their  respective  interest  in  the  estate.  In  the  observation 
or  neglect  of  this  maxim  consists  what  is  called  equality  or  inequality 
of  taxation." 

But  notwithstanding  the  rule  of  uniformity  lying  at  the  basis  of 
every  just  system  of  taxation,  there  are  doubtless  many  individual 
oases  where  the  weight  of  a  tax  falls  unequally  upon  the  owners  of 
the  property  taxed.  This  is  almost  unavoidable  under  ever}-  system 
of  direct  taxation.  But  the  tax  is  not  rendered  illegal  b}-  silch  discrim- 
ination. Thus  every  citizen  is  bound  to  pa}'  his  proportion  of  a 
school  tax,  though  he  have  no  children  ;  of  a  police  tax,  though  he  have 
no  buildings  or  personal  property  to  be  guarded  ;  or  of  a  road  tax, 
though  he  never  use  the  road.  In  other  words  a  general  tax  cannot  be 
dissected  to  show  that,  as  to  certain  constituent  parts,  the  taxpayer  re- 
ceives no  benefit.  Even  in  case  of  special  assessments  imposed  for  the 
improvement  of  property  within  certain  limits,  the  fact  that  it  is  ex- 
tremelv  doubtful  whether  a  particular  lot  can  receive  any  benefit  from 
the  improvement  does  not  invalidate  the  tax  with  respect  to  such  lot. 
Kelly  V.  Pittsburgh  104  U.  S.  78 ;  Amesbury  Nail  Factory  Co.  v. 
Weed,  17  Mass.  53;  Thomas  v.  Gay,  169  U.  S.  264;  Louisville  &c. 
R.  R.  Co.  V.  Barber  Asphalt  Co.  197  U.  S.  430.  Subject  to  these  in- 
dividual exceptions,  the  rule  is  that  in  classifying  property  for  taxation 
some  benefit  to  the  property  taxed  is  a  controlling  consideration,  and  a 
plain  abuse  of  this  power  will  sometimes  justify  a  judicial  interference. 
Norwood  V.  Baker,  172  U.  S.  269.  It  is  often  said  protection  and 
payment  of  taxes  are  correlative  obligations. 

It  is  also  essential  to  the  validity  of  a  tax  that  the  property  shall  be 
within  the  territorial  jurisdiction  of  the  taxing  power.  Not  only  is 
the  operation  of  State  laws  limited  to  persons  and  property  within  the 
boundaries  of  the  State,  but  property  which  is  wholly  and  exclusively 
within  the  jurisdiction  of  another  State,  receives  none  of  the  protec- 
tion for  which  the  tax  is  supposed  to  be  the  compensation.  This  rule 
receives  its  most  familiar  illustration  in  the  cases  of  land  which,  to 
be  taxable,  must  be  within  the  limits  of  the  State.     Indeed,  we  know 


104  UNIOx\   TRANSIT   CO.   V.    KENTUCKY.  [CHAP.  II. 

of  no  case  where  a  legislature  has  assumed  to  impose  a  tax  upon  land 
within  the  jurisdiction  of  another  State,  much  less  where  such  action 
has  been  defended  by  any  court.  It  is  said  by  this  court  in  the 
Foreign-held  Bond  Case,  15  Wall.  300,  319,  that  no  adjudication 
should  be  necessary  to  establish  so  obvious  a  proposition  as  that 
property  lying  beyond  the  jurisdiction  of  a  State  is  not  a  subject 
upon  which  her  taxing  power  can  be  legitimately  exercised. 

The  argument  against  the  taxability  of  land  within  the  jurisdiction 
of  another  State  applies  with  equal  cogency  to  tangible  personal  prop- 
erty beyond  the  jurisdiction.  It  is  not  only  beyond  the  sovereignty  of 
the  taxing  State,  but  does  not  and  cannot  receive  protection  under  its 
laws.  True,  a  resident  owner  may  receive  an  income  from  such 
property,  but  the  same  may  be  said  of  real  estate  within  a  foreign 
jurisdiction.  Whatever  be  the  rights  of  the  State  with  respect 
to  the  taxation  of  such  income,  it  is  clearly  beyond  its  power  to  tax 
the  land  from  which  the  income  is  derived.  As  we  said  in  Louisville 
&c.  Ferry  Co.  v.  Kentucky,  188  U.  S.,  385,  396:  "While  the  mode, 
form,  and  extent  of  taxation  are,  speaking  generally,  Umited  only  by 
the  wisdom  of  the  legislature,  that  power  is  limited  by  principle  in- 
hering in  the  very  nature  of  constitutional  government,  namely,  that 
the  taxation  imposed  must  have  relation  to  a  subject  within  the  jurisdic- 
tion of  the  taxing  government."  See  also  McCulloch  r.  Maryland,  4 
Wheat.  31.6,  429;  Hays  v.  Pacific  Mail  S.  S.  Co.,  17  How.  596,  599  ; 
St.  Louis  r.  Ferry  Co.,  11  Wall.  423,  429,431;  Morgan  y.  Parhain, 
16  Wall.  471,  476. 

Respecting  this,  there  is  an  obvious  distinction  between  the  tangible 
and  intangible  property,  in  the  fact  that  the  latter  is  held  secretly  ; 
that  there  is  no  method  by  which  its  existence  or  ownership  can  be 
ascertained  in  the  State  of  its  situs,  except  perhaps  in  the  case  of 
mortgages  or  shares  of  stock.  So  if  the  owner  be  discovered,  there  is 
no  way  by  which  he  can  be  reached  by  process  in  a  State  other  than 
that  of  his  domicil,  or  the  collection  of  tlie  tax  otherwise  enforced. 
In  this  class  of  cases  the  tendency  of  modern  authorities  is  to  apply  the 
maxim  mohilia  sequiintur  personam,  and  to  hold  that  the  property  may 
be  taxed  at  the  domicil  of  the  owner  as  the  real  situs  of  the  debt,  and 
also,  more  particularly  in  the  case  of  mortgages,  in  the  State  where 
the  property  is  retained.  Such  has  been  the  repeated  rulings  of  this 
court.  Tappan  v.  Merchants'  National  Bank,  19  AVall.  490;  Kirtlaud 
V.  Hotchkiss,  100  U.  S.  491 ;  Bonaparte  v.  Tax  Court,  104  U.  S.  592; 
Sturgis  V.  Carter,  114  U.  S.  511;  Kidd  v.  Alabama,  188  U.  S.  730; 
Blackstone  /•.  IMillcr,  188  U.  S.  189. 

If  tills  occasionally  results  in  double  taxation,  it  much  oftener  happens 
that  this  class  of  property  escapes  altogether.  In  the  case  of  intangible 
property,  the  law  does  not  look  for  absolute  equality,  but  to  the  much 
more  practical  consideration  of  collecting  the  tax  upon  such  property, 
either  in  the  State  of  the  domicil  or  the  situs.  Of  course,  we  do  not 
enter  into  a  consideration  of  the  question,  so  much  discussed  by  polit- 


SECT.  II.J  UNION   TRANSIT    CO.    V.    KENTUCKY.  105 

ical  economists,  of  the  double  taxation  involved  in  taxing  the  piopert}' 
from  which  these  securities  arise,  and  also  the  burdens  upon  such  prop- 
erty, such  as  mortgages,  shares  of  stock  and  the  like  —  the  securities 
themselves. 

The  arguments  in  favor  of  the  taxation  of  intangible  property  at  the 
domicil  of  the  owner  have  no  application  to  tangible  property.  The 
fact  that  such  property  is  visible,  easily  found  and  difficult  to  conceal, 
and  the  tax  readily  collectible,  is  so  cogent  an  argument  for  its  taxa- 
tion at  its  situs,  that  of  late  there  is  a  general  consensus  of  opinion 
that  it  is  taxable  in  the  State  where  it  is  permanently  located  and  em- 
ployed, and  wliere  it  receives  its  entire  protection,  irrespective  of  the 
domicil  of  the  owner.  We  have,  ourselves,  held  in  a  number  of  cases 
that  such  property  permanently  located  in  a  State  other  than  that  of 
its  owner  is  taxable  there.  Brown  v.  Houston,  114  U.  S.  622  ;  Coe  v. 
Errol,  116  U.  S.  517  ;  Pullman's  Car  Co.  v.  Pennsylvania,  141  U.  S.  18  ; 
Western  Union  Telegraph  Co.  v.  Massachusetts,  125  U.  S.  530  ;  Rail- 
road Company  r.  Peniston,  18  Wall.  5  ;  American  Refrigerator  Transit 
Company  r.  Hall,  174  U.  S.  70;  Pittsburgh  Coal  Company  r.  Bates, 
156  U.  S.  577;  Old  Dominion  Steamship  Company  v.  Virginia,  198 
U.  S.  299.  We  have  also  held  that,  if  a  corporation  be  engaged  in 
running  railroad  cars  into,  through,  and  out  of  the  State^  and  having  at 
all  times  a  large  number  of  cars  within  the  State,  it  ma}-  be  taxed  by 
taking  as  the  basis  of  assessment  such  proportion  of  its  capital  stock  as 
the  number  of  miles  of  railroad  over  which  its  cars  are  run  within  the 
State  bears  to  the  whole  number  of  miles  in  all  the  States  over  which 
its  cars  are  run.     Pullman's  Car  Co.  v.  Pennsylvania,  141  U.  S.  18. 

There  are  doubtless  cases  in  the  State  reports  announcing  the  prin- 
ciple that  the  ancient  maxim  of  niobilia  se'juuntur  j^&'n'soyiam  still 
applies  to  personal  property,  and  that  it  may  be  taxed  at  the  domicil 
of  the  owner,  but  upon  examination  they  all  or  nearly  all  relate  to 
intangible  propertj-,  such  as  stocks,  bonds,  notes,  and  other  choses  in 
action.  We  are  cited  to  none  applying  this  rule  to  tangible  propert}-, 
and  after  a  careful  examination  have  not  been  able  to  find  an}'  wherein 
the  question  is  squarely  presented,  unless  it  be  that  of  Wheaton  v. 
Mickel,  63  N.  J.  Law,  525,  where  a  resident  of  New  Jersey  was  taxed 
for  certain  coastwise  and  seagoing  vessels  located  in  Pennsylvania.  It 
did  not  appear,  however,  that  they  were  permanently  located  there. 
The  case  turned  upon  the  construction  of  a  State  statute,  and  the  ques- 
tion of  constitutionality  was  not  raised.  If  there  are  any  other  cases 
holding  that  the  maxim  applies  to  tangible  personal  property,  they  are 
wholly  exceptional,  and  were  decided  at  a  time  when  personal  property 
was  comparatively  of  small  amount,  and  consisted  principally  of  stocks 
in  trade,  horses,  cattle,  vehicles,  and  vessels  engaged  in  navigation. 
But  in  view  of  the  enormous  increase  of  such  property  since  the  in- 
troduction of  railways  and  the  growth  of  manufactures,  the  tendency 
has  been  in  recent  years  to  treat  it  as  having  a  situs  of  its  own  for 
the  purpose  of  taxation,   and  correlatively  to  exempt  at  the  domicil  of 


106  UNION  TRANSIT  CO.  V.   KENTUCKY.        [CHAP.  II. 

its  owner.  The  eases  in  the  State  reports  upon  this  subject  usually 
turn  upon  the  construction  of  local  statutes  granting  or  withholding  the 
right  to  tax  extra-territorial  property,  and  do  not  involve  the  constitu- 
tional principle  here  invoked.  Many  of  them,  such,  for  instance,  as 
Blood  V.  Sayre,  17  Vt.  609;  Preston  v.  Boston,  12  Pickering,  7; 
Pease  y.  Whitney,  8  Mass.  93;  Gray  v.  Kettel,  12  Mass.  161,  turn 
upon  the  taxability  of  property  where  the  owner  is  located  in  one, 
and  the  property  in  another,  of  two  jurisdictions  within  the  same  State, 
sometimes  even  involving  double  taxation,  and  are  not  in  point  here. 

One  of  the  most  valuable  of  the  State  cases  is  that  of  Hoyt  v. 
Commissioners  of  Taxes,  23  N.  Y.  224,  where,  under  the  New  York 
statute,  it  was  held  that  the  tangible  property  of  a  resident  actually 
situated  in  another  State  or  countr}"  was  not  to  be  included  in  the  as- 
sessment against  him.  The  statute  declared  that  "all  lands  and  all 
personal  estate  within  this  State  "  were  liable  for  taxation,  and  it  was 
said  in  a  most  instructive  opinion  b}"  Chief  Justice  Comstock  that  the 
language  could  not  be  obscured  by  the  introduction  of  a  legal  fiction 
about  the  situs  of  personal  estate.  It  was  said  that  this  fiction  involved 
the  necessary  consequence  that  "  goods  and  chattels  actually  within 
this  State  are  not  here  in  any  legal  sense,  or  for  an}'  legal  purpose,  if 
the  owner  resides  abroad  ;  "  and  that  the  maxim  mobilia  sequuntur 
personam  ma}"  onl}"  be  resorted  to  when  convenience  and  justice  so  re- 
quire. The  proper  use  of  legal  fiction  is  to  prevent  injustice,  accord- 
ing to  the  maxim  '■'•in  fictiono,  juris  semper  wquitas  existat."  See 
Eidman  v.  Martinez,  184  U.  S.  578 ;  Blackstone  r.  Miller,  188  U.  S. 
189,  206.  "  No  fiction,"  says  Blackstone,  "shall  extend  to  work  an 
injury;  its  proper  operation  being  to  prevent  a  mischief  or  remedy  an 
inconvenience,  which  might  result  from  a  general  rule  of  law."  The 
opinion  argues  with  great  force  against  the  injustice  of  taxing  extra- 
territorial property,  when  it  is  also  taxable  in  the  State  where  it  is  lo- 
cated. Similar  cases  to  the  same  effect  are  People  v.  Smith,  88  N.  Y. 
576  ;  City  of  New  Alban}'  lu  Meekin,  3  Indiana,  481  ;  Wilkey  v.  Cit}'  of 
Pekin,  19  Illinois,  160;  Johnson  r.  Lexington,  14  B.  Monroe,  521; 
CatHn  r.  Hull,  21  Vermont,  152  ;  Nashua  Bank  v.  Nashua,  46  N.  H. 
380. 

In  Weaver's  Estate  v.  State,  110  Iowa,  328,  it  was  held  by  the  Su- 
preme Court  of  Iowa  that  a  herd  of  cattle  within  the  State  of  Mis- 
souri belonging  to  a  resident  of  Iowa,  was  not  subject  to  an 
inlioritanco  tax  upon  his  decease.  In  Commonwealth  r.  American 
Dredging  Comi)any,  122  Penna.  St.  386,  it  was  held  that  a  Penn- 
sylvania corporation  was  taxable  in  respect  to  certain  dredges 
and  other  similar  vessels  which  were  built,  but  not  permanently 
retained  outside  of  the  state.  It  was  said  that  the  non-taxabilitj'  of 
tangible  personal  property  located  permanently  outside  of  the  State 
was  not  "because  of  the  technical  principle  that  the  situs  of  personal 
proport}'  is  where  the  domicil  of  the  owner  is  found.  This  rule  is 
doubtless  true  as  to  intangible  property,  such  as  bonds,  mortgages,  and 


SECT.  II.]  UNION   TRANSIT   CO.    V.    KENTUCKY.  107 

other  evidences  of  debt.  But  the  better  opinion  seeras  to  be  that  it 
does  not  liold  in  the  case  of  visible  tangible  personal  propert}'  perma- 
nently located  in  another  State.  In  such  cases  it  is  taxable  within 
the  jurisdiction  where  found,  and  is  exempt  at  the  domicil  of  the 
owner."  The  property  in  that  case,  however,  was  held  not  to  be  per- 
manently outside  of  the  State,  and  therefore  not  exempt  from  taxation. 
The  rule,  however,  seems  to  be  well  settled  in  Pennsylvania  that  so 
much  of  the  tangible  propert}'  of  a  corporation  as  is  situated  in 
another  State,  and  there  employed  in  its  corporate  business,  is  not 
taxable  in  Pennsylvania.  Commonwealth  v.  Montgomer}"  &c.  Mining 
Co.,  5  Pa.  County  Courts  Rep.  89;  Commonwealth  v.  Railroad  Co., 
145  Pa.  St.  96;  Commonwealth  v.  Westinghouse  Mfg.  Co.,  151  Pa.  St. 
265  ;  Commonwealth  v.  Standard  Oil  Co.,  101  Pa.  St.  119.  The  rule  is 
the  same  in  New  York.  Pacific  Steamship  Company  v.  Commissioners, 
46  How.  Pr.  315. 

But  there  are  two  recent  cases  in  this  court  which  we  think  com- 
pletely cover  the  question  under  consideration  and  require  the  reversal 
of  the  judgment  of  the  State  court.  The  first  of  these  is  that  of  the 
Louisville  &c.  Ferry  Co.  v.  Kentucky,  188  U.  S.  385.  That  was  an 
action  to  recover  certain  taxes  imposed  upon  the  corporate  franchise 
of  the  defendant  compan}',  which  was  organized  to  establish  and  main- 
tain a  ferry  between  Kentucky  and  Indiana.  The  defendant  was  also 
licensed  by  the  State  of  Indiana.  We  held  that  the  fact  that  such 
franchise  had  been  granted  b}'  the  Commonwealth  of  Kentucky  did 
not  bring  within  the  jurisdiction  of  Kentucky  for  the  purpose  of  tax- 
ation the  franchise  granted  to  the  same  company  by  Indiana,  and 
which  we  held  to  be  an  incorporeal  hereditament  derived  from  and 
having  its  legal  situs  in  that  State.  It  was  adjudged  that  such  taxa- 
tion amounted  to  a  deprivation  of  property  without  due  process  of  law, 
in  violation  of  the  Fourteenth  Amendment,  as  much  so  as  if  the  State 
taxed  the  land  owned  b^'  that  company ;  and  that  the  officers  of  the 
State  had  exceeded  their  power  in  taxing  the  whole  franchise  without 
making  a  deduction  for  that  obtained  from  Indiana,  the  two  being 
distinct,  "although  the  enjoyment  of  both  are  essential  to  a  complete 
ferry  right  for  the  transportation  of  persons  and  property  across  the 
river  both  ways." 

The  other  and  more  recent  case  is  that  of  the  Delaware  &c.  Rail- 
road Co.  V.  Pennsylvania,  198  U.  S.  341.  That  was  an  assessment 
upon  the  capital  stock  of  the  railroad  compan}-,  wherein  it  was  con- 
tended that  the  assessor  should  have  deducted  from  the  value  of  such 
stock  certain  coal  mined  in  Pennsylvania  and  owned  by  it,  but  stored 
in  New  York,  there  awaiting  sale,  and  beyond  the  jurisdiction  of  the 
commonwealth  at  the  time  appraisement  was  made.  This  coal  was 
taxable,  and  in  fact  was  taxed  in  the  State  where  it  rested  for  the  pur- 
poses of  sale  at  the  time  when  the  appraisement  in  question  was  made. 
Both  this  court  and  the  Supreme  Court  of  Pennsylvania  had  held  that 
a  tax  on  the  corporate  stock  is  a  tax  on  the  assets  of  the  corporation 


108  UNION  TRANSIT  CO,  V.    KENTUCKY.        [CHAP.  II. 

issuing  sucli  stock.  The  two  courts  agreed  in  the  general  proposition 
that  tangible  property-  permanently  outside  of  the  State,  and  having  no 
situs  within  the  State,  could  not  be  taxed.  But  they  differed  upon  the 
question  whether  the  coal  involved  was  permanently  outside  of  the 
State.  In  delivering  the  opinion  it  was  said:  "  However  temporary 
the  stay  of  the  coal  might  be  in  the  particular  foreign  States  where  it 
was  resting  at  the  time  of  the  appraisement,  it  was  definitely  and  for- 
ever bej'ond  the  jurisdiction  of  Pennsylvania.  And  it  was  within  the 
jurisdiction  of  the  foreign  States  for  purposes  of  taxation,  and  in  truth 
it  was  there  taxed.  We  regard  this  tax  as  in  substance  and  in  fact, 
though  not  in  form,  a  tax  specificalh'  levied  upon  the  property  of  the 
corporation,  and  part  of  that  property  is  outside  and  beyond  the  juris- 
diction of  the  State  which  thus  assumes  to  tax  it."  The  decision  in  that 
case  was  really  broader  than  the  exigencies  of  the  case  under  consider- 
ation required,  as  the  tax  was  not  upon  the  personal  property  itself, 
but  upon  the  capital  stock  of  a  Penns3lvania  corporation,  a  part  of 
which  stock  was  represented  by  the  coal,  the  value  of  which  was  held 
should  have  been  deducted. 

The  adoption  of  a  general  rule  that  tangible  personal  property  in 
other  States  may  be  taxed  at  the  domicil  of  the  owner  involves  possi- 
bilities of  an  extreme!}'  serious  character.  Not  only  would  it  author- 
ize the  taxation  of  furniture  and  other  property  kept  at  country  houses 
in  other  States  or  even  in  foreign  countries,  of  stocks  of  goods  and  mer- 
chandise kept  at  branch  establishments  when  already  taxed  at  the  State 
of  their  situs,  but  of  that  enormous  mass  of  personal  property  belong- 
ing to  railways  and  other  corporations  which  might  be  taxed  in  the 
state  where  the}'  are  incorporated,  thougli  their  charters  contemplated 
tlie  construction  and  operation  of  roads  wholly  outside  the  State,  and 
sometimes  across  the  continent,  and  when  in  no  other  particular  the}' 
are  subject  to  its  laws  and  entitled  to  its  protection.  The  propriety 
of  such  incorporations,  where  no  business  is  done  witliin  the  State,  is 
open  to  a  grave  doubt,  but  it  is  possible  that  legislation  alone  can 
furnish  a  remedy. 

Our  conclusion  upon  this  branch  of  the  case  renders  it  unnecessary 
to  decide  the  second  question,  viz  :  Whether  the  Transit  Company  was 
denied  the  equal  protection  of  the  laws. 

It  is  unnecessary  to  say  that  this  case  does  not  involve  the  question 
of  the  taxation  of  intangible  personal  property,  or  of  inheritance  or 
succession  taxes,  or  of  questions  arising  between  different  municipali- 
ties or  taxing  districts  within  the  same  State,  which  are  controlled  by 
different  considerations. 

We  are  of  opinion  tliat  the  cars  in  question,  so  far  as  they  were 
located  and  cm[)loyed  in  other  States  tlian  Kentucky,  were  not  subject 
to  tlie  taxing  power  of  that  commonwealth,  and  that  the  judgment  of 
the  Court  of  Appeals  must  be  reversed,  and  the  case  remanded  to  that 
court  for  further  proceedings  not  inconsistent  with  this  opinion. 

Mk.  Justick  Wiuxe  concurred  in  the  result. 


SECT.  II,]  NEW    YORK    CENTRAL    RAILROAD    V.    MILLER.  109 

Mr.  Justice  Holmes  :  It  seems  to  me  that  the  result  reached  by  the 
court  probably  is  a  desirable  oue,  but  I  hardly  understand  how  it  can 
be  deduced  from  the  Fourteenth  Amendment,  and  as  the  Chief  Justice 
feels  the  same  difficulty,  I  think  it  proper  to  say  that  my  doubt  has 
not  been  removed. 


NEW   YORK   CENTRAL   RAILROAD   v.   MILLER. 

Supreme  Court  of  the  United  States.     1906. 

[Reported  202  U.  S.  584.] 

Holmes,  J.  These  cases  arise  upon  writs  of  certiorari,  issued  under 
the  State  law  and  addressed  to  the  State  comptroller  for  the  time  being, 
to  revise  taxes  imposed  upon  the  relator  for  the  years  1900,  1901,  1902, 
1903  and  1904  respectively.  The  tax  was  levied  under  New  York  Laws 
of  1896,  c.  908,  §  182,  which,  so  far  as  material,  is  as  follows  :  "  Franchise 
Tax  on  Corporations.  —  Every  corporation  .  .  .  incorporated  .  .  .  under 
.  .  .  law  in  this  State,  shall  pa}'  to  the  State  treasurer  annually,  an  annual 
tax  to  be  computed  upon  the  basis  of  the  amount  of  its  capital  stock 
employed  within  this  State  and  upon  each  dollar  of  such  amount,"  at 
a  certain  rate,  if  the  dividends  amount  to  six  per  cent  or  more  upon  the 
par  value  of  such  capital  stock.  "  If  such  dividend  or  dividends  amount 
to  less  than  six  per  centum  on  the  par  value  of  the  capital  stock  [as  vi-as 
the  case  with  the  relator],  the  tax  shall  be  at  the  rate  of  one  and  one-half 
mills  upon  such  portion  of  the  capital  stock  at  par  as  the  amount  of  cap- 
ital emplo3'ed  within  this  State  bears  to  the  entire  capital  of  the  cor[)o- 
ration."  It  is  provided  further  by  the  same  section  that  every  foreign 
corporation,  etc.,  "shall  paj'  a  like  tax  for  the  privilege  of  exercising 
its  corporate  franchises  or  carrying  on  its  business  in  such  corporate 
or  organized  capacit}-  in  this  State,  to  be  computed  upon  the  basis  of 
the  capital  employed  by  it  within  this  State." 

The  relator  is  a  New  York  corporation  owning  or  hiring  lines  without 
as  well  as  within  the  State,  having  arrangements  with  other  carriers  for 
through  transportation,  routing  and  rating,  and  sending  its  cars  to  points 
without  as  well  as  within  the  State,  and  over  other  lines  as  well  as  its 
own.  The  cars  often  are  out  of  the  relator's  possession  for  some  time, 
and  may  be  transferred  to  man}'  roads  successively,  and  even  may  be 
used  b}'  other  roads  for  their  own  independent  business,  before  the}' 
retui'n  to  the  relator  or  the  State.  In  short,  by  the  familiar  course  of 
railroad  business  a  considerable  proportion  of  the  relator's  cars  con- 
stantly is  out  of  the  State,  and  on  this  ground  the  relator  contended 
that  that  proportion  should  be  deducted  from  its  entire  capital,  in  order 
to  find  the  capital  stock  employed  within  the  State.  This  contention 
the  comptroller  disallowed. 

The  writ  of  certiorari  in  the  earliest  case,  No.  81,  with  the  return  set- 
ting forth  the  proceedings  of  the  comptroller.  Knight,  and  the  evidence 


110  NEW   YORK   CENTRAL   RAILROAD    V.    MILLER.  [CHAP.  II. 

given  before  him,  was  heard  by  the  Appellate  Division  of  the  Supreme 
Court,  and  a  reduction  of  the  amount  of  the  tax  was  ordered.  75  App. 
Div.  169.  On  appeal  the  Court  of  Appeals  ordered  the  proceedings  to 
be  remitted  to  the  comptroller,  to  the  end  that  further  evidence  might 
be  taken  upon  the  question  whether  any  of  the  relator's  rolling  stock 
was  used  exclusively  outside  of  the  State,  with  directions  that  if  it  should 
be  found  that  such  was  the  fact  the  amount  of  the  rolling  stock  so  used 
should  be  deducted.  173  N.  Y.  255.  On  rehearing  of  No.  81  and  with 
it  No.  82,  before  the  comptroller,  now  Miller,  no  evidence  was  offered 
to  prove  that  any  of  the  relator's  ears  or  engines  were  used  continuously 
and  exclusively  outside  of  the  State  during  the  whole  tax  3'ear.  In  the 
later  cases  it  was  admitted  tliat  no  substantial  amount  of  the  equipment 
was  so  used  during  the  similar  period.  But  in  all  of  them  evidence  was 
offered  of  the  movements  of  particular  cars,  to  illustrate  the  transfers 
which  they  went  through  before  they  returned,  as  has  been  stated,  evi- 
dence of  the  relator's  road  mileage  outside  and  inside  of  the  State,  and 
also  evidence  of  the  car  mileage  outside  and  inside  of  the  State,  in  order 
to  show,  on  one  footing  or  the  other,  that  a  certain  proportion  of  cars, 
although  not  the  same  cars,  was  continuous!}'  witliout  the  State  during 
the  whole  tax  3'ear.  The  comptroller  refused  to  make  an}-  reduction 
of  the  tax,  and  the  case  being  taken  up  again,  his  refusal  was  affirmed 
by  the  Appellate  Division  of  the  Supreme  Court  and  by  the  Court  of 
Appeals  on  the  authority  of  the  former  decision.  89  App.  Div.  127  ; 
177  N.  Y.  584.  The  later  cases  took  substantially  the  same  course. 
The  relator  saved  the  questions  whether  the  statute  as  construed  was 
not  contrary  to  Article  1,  §  8,  of  the  Constitution  of  the  United  States, 
as  to  commerce  among  the  States;  Article  1,  §  10,  against  impairing 
the  obligation  of  contracts;  Article  4,  §  1,  as  to  giving  full  faith  and 
credit  to  the  public  acts  of  other  States  ;  and  the  Fourteenth  Amend- 
ment.    It  took  out  writs  of  error  and  brought  the  cases  here. 

The  argument  for  the  relator  had  woven  through  it  suggestions  which 
only  tended  to  show  that  the  construction  of  the  New  York  statute  b}' 
the  Court  of  Appeals  was  wrong.  Of  course  if  the  statute  as  construed 
is  valid  under  the  Constitution,  we  are  bound  by  the  construction  given 
to  it  by  the  State  court.  In  this  case  we  are  to  assume  that  the  statute 
purports  and  intends  to  allow  no  deduction  from  the  capital  stock  taken 
as  the  basis  of  the  tax,  unless  some  specific  portion  of  the  corporate 
property  is  outside  of  the  State  during  the  whole  tax  year.  We  nuist 
assume,  further,  that  no  part  of  the  corporate  property  in  question 
was  outside  of  the  State  during  the  whole  tax  year.  The  proposition 
reall}'  was  conceded,  as  we  have  said,  and  the  evidence  that  was 
offered  had  no  tendency  to  prove  the  contrary.  If  we  are  to  suppose 
tliat  the  reports  offered  in  evidence  were  accepted  as  competent  to 
establish  the  facts  which  they  set  forth,  still  it  would  be  going  a  very 
great  way  to  infer  from  car  mileage  the  average  number  or  proportion 
of  cars  absent  from  the  State.  For,  as  was  said  by  a  witness,  the  reports 
show  only  that  the  cars  made  so  many  miles,  but  it  might  be  ten  or  it 


SECT.  II.]  NEW   YORK    CENTRAL   RAILKOAD    V.   MILLEK.  Ill 

might  be  fifty  cars  that  made  thein.  Cerlainh-  no  inference  whatever 
could  be  drawn  tiiat  the  same  cars  were  absent  from  the  I^tate  all  the 
time. 

In  view  of  what  we  have  said  it  is  questionable  whether  the  relator 
has  offered  evidence  enough  to  open  the  constitutional  ol)jections  urged 
against  the  tax.  But  as  it  cannot  be  doubted,  in  view  of  the  well-known 
course  of  railroad  business,  that  some  considerable  proportion  of  the 
relator's  cars  always  is  absent  from  the  State,  it  would  be  unsatisfactory 
to  turn  the  case  off  with  a  merelj-  technical  answer,  and  we  proceed. 
The  most  salient  points  of  the  relator's  argument  are  as  follows :  This 
tax  is  not  a  tax  on  the  franchise  to  be  a  corporation,  but  a  tax  on  the 
use  and  exercise  of  the  franchise  of  transportation.  The  use  of  this  or 
an}'  other  franchise  outside  the  State  cannot  be  taxed  by  New  York. 
The  car  mileage  within  the  State  and  that  upon  other  lines  without  the 
State  afford  a  basis  of  apportionment  of  the  average  total  of  cars  contin- 
uously employed  by  other  corporations  without  the  State,  and  the  relator's 
road  mileage  within  and  without  the  State  affords  a  basis  of  apportion- 
ment of  its  average  total  equipment  continuous!}-  employed  by  it  re- 
spectively within  and  without  the  State.  To  tax  on  the  total  value  within 
and  without  is  beyond  the  jurisdiction  of  the  State,  a  taking  of  property 
without  due  process  of  law,  and  an  unconstitutional  interference  with 
commerce  among  the  States. 

A  part  of  this  argument  we  have  answered  already.  But  we  must  go 
further.  We  are  not  curious  to  inquire  exactlywhat  kind  of  a  tax  this 
is  to  be  called.  If  it  can  be  sustained  by  the  name  given  to  it  by  the 
local  courts  it  mast  be  sustained  by  us.  It  is  called  a  franchise  tax  in 
the  act,  but  it  is  a  franchise  tax  measured  by  property.  A  tax  very 
like  the  present  was  treated  as  a  tax  on  the  property  of  the  corporation 
in  Delaware,  Lackawanna  &  Western  R.  R.  v.  Pennsylvania,  198  U.  S. 
341,  353.  This  seems  to  be  regarded  as  such  a  tax  by  the  Court  of 
Appeals  in  this  case.  See  People  v.  Morgan,  178  N.  Y.  433,  439.  If 
it  is  a  tax  on  any  franchise  which  the  State  of  New  York  gave,  and  the 
same  State  could  take  away,  it  stands  at  least  no  worse.  The  relator's 
argument  assumes  that  it  must  be  regarded  as  a  tax  of  a  particular  kind, 
in  order  to  invalidate  it,  although  it  might  be  valid  if  regarded  as  the 
State  court  regards  it. 

Suppose,  then,  that  the  State  of  New  York  had  taxed  the  property 
directly,  there  was  nothing  to  hinder  its  taxing  the  whole  of  it.  It  is 
true  that  it  has  been  decided  that  property,  even  of  a  domestic  corpora- 
tion, cannot  be  taxed  if  it  is  permanently  out  of  the  State.  Union  Re- 
frigerator Transit  Co.  v.  Kentucky,  199  U.  S.  194,  201,  211  ;  Delaware, 
Lackawanna  &  Western  R.  R.  v.  Pennsylvania,  198  U.  S.  341  ;  Louisville 
&  Jeffersonville  Ferry  Co.  v.  Kentucky,  188  U.  S.  385.  But  it  has  not 
been  decided,  and  it  could  not  be  decided,  that  a  State  may  not  tax  its 
own  corporations  for  all  their  property  within  the  State  during  the  tax 
year,  even  if  every  item  of  that  property  should  be  taken  successively 
into  another  State  for  a  day,  a  week,  or  six  months,  and  then  brought 


112  METROPOLITAN   LIFE    INS.    CO.    V.   NEW   ORLEANS.     [CHAP.  XL 

back.  Using  the  language  of  doraieil,  which  now  so  frequentl}^  is  ap- 
plied to  inanimate  things,  the  State  of  origin  remains  the  permanent 
situs  of  the  property,  notwithstanding  its  occasional  excursions  to 
foreign  parts.  Ayer  &  Lord  Tie  Co.  v.  Kentucky,  May  21,  1906, 
202  U.  S.  409.  See  also  Union  Refrigerator  Transit  Co.  v.  Kentucky 
199  U.  S.  194,  208,  209. 

It  was  suggested  that  this  case  is  but  the  complement  of  Pullman's 
Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  18,  and  that  as  there  a  tax 
upon  a  foreign  corporation  was  sustained,  levied  on  such  proportion  of 
its  capital  stock  as  the  miles  of  track  over  which  its  cars  were  run  within 
the  State  bore  to  the  whole  number  of  miles  over  which  its  cars  were 
run,  so  here  in  the  domicil  of  such  a  corporation  there  sliould  be  an  ex- 
emption corresponding  to  the  tax  held  to  be  lawfully  levied  elsewhere. 
But  in  that  case  it  was  found  that  the  "  cars  used  in  this  State  have, 
during  all  the  time  for  which  tax  is  charged,  been  running  into,  through 
and  out  of  the  State."  The  same  cars  were  continuouslj'  receiving  the 
protection  of  the  State  and,  therefore,  it  was  just  that  the  State  should 
tax  a  proportion  of  them.  Whether  if  the  same  amount  of  protection 
had  been  received  in  respect  of  constantly  changing  cars  the  same  prin- 
ciple would  have  applied  was  not  decided,  and  it  is  not  necessary'  to 
decide  now.  In  the  present  case,  however,  it  does  not  appear  that  any 
specific  cars  or  any  average  of  cars  was  so  continuously'  in  an}'  other 
state  as  to  be  taxable  there.  The  absences  relied  on  were  not  in  the 
course  of  travel  upon  fixed  routes,  but  random  excursions  of  casually 
chosen  cars,  determined  b}'  tlie  varying  orders  of  particular  shippers 
and  the  arbitrary  convenience  of  other  roads.  Therefore  we  need  not 
consider  either  whether  there  is  any  necessary  parallelism  between 
liability  elsewhere  and  immunity  at  home. 

Judgments  affirmed. 


METROPOLITAN   LIFE   INSURANCE   COMPANY  v. 
NEW   ORLEANS. 

Supreme  Coukt  of  the  United  States.     1907. 

[Reported  205  U.  S.  395.] 

Moody,  J.  This  is  a  writ  of  error  to  review  the  judgment  of  the 
Supreme  Court  of  Louisiana,  which  sustained  a  tax  on  the  "  credits, 
money  loaned,  bills  receivable,"'  etc.,  of  the  plaintift'  in  error,  a  life 
insurance  company  incorporated  under  the  laws  of  New  York,  where 
it  liad  its  home  oftice  and  principal  place  of  business.  It  issued  poli- 
cies of  life  insurance  in  the  State  of  I^ouisiana  and,  for  the  purpose  of 
doing  that  and  otiier  business,  liad  a  resident  agent,  called  a  superin- 
tendent, whose  duty  it  was  to  superintend  the  company's  business  gen- 
erally in  the  S*:ate.  The  agent  had  a  local  office  in  New  Orleans.  The 
company  was  engaged  in  tlie  business  of  lending  money  to  the  holders 


SECT.  II.]    METROPOLITAN    LIFE    INS.    CO.    V.    NEW   ORLEANS.  113 

of  its  policies,  wliicli,  wlien  tliey  had  reached  a  certain  point  of  maturit}', 
were  regarded  as  furnishing  adequate  security  for  loans.  The  monej' 
lending  was  conducted  in  the  following  manner :  The  policy  holders 
desiring  to  obtain  loans  on  their  policies  applied  to  the  company's  agent 
in  New  Orleans.  If  the  agent  thought  a  loan  a  desirable  one  he  ad- 
vised the  company  of  the  application  by  communicating  with  the  home 
oflSce  in  New  York,  and  requested  that  the  loan  be  granted.  If  the 
home  office  approved  the  loan  the  company  forwarded  to  the  agent  a 
check  for  the  amount,  with  a  note  to  be  signed  by  the  borrower.  The 
agent  procured  the  note  to  be  signed,  attached  the  policy  to  it,  and  for- 
warded both  note  and  policy  to  the  home  office  in  New  Yoik.  He  then 
delivered  to  the  borrower  the  amount  of  the  loan.  When  interest  was 
due  upon  the  notes  it  was  paid  to  the  agent  and  by  him  transmitted  to 
the  home  office.  It  does  not  appear  whether  or  not  the  notes  were  re- 
turned to  New  Orleans  for  the  endorsement  of  the  payments  of  interest. 
When  the  notes  were  paid  it  was  to  the  agent,  to  whom  they  were  sent 
to  be  delivered  back  to  the  makers.  At  all  other  times  the  notes  and 
policies  securing  them  were  kept  at  the  home  office  in  New  York.  The 
disputed  tax  was  not  eo  nomine  on  these  notes,  but  was  expressed  to 
be  on  "credits,  money  loaned,  bills  receivable,"  etc.,  and  its  amount 
was  ascertained  by  computing  the  sura  of  the  face  value  of  all  the  notes 
held  by  the  company  at  the  time  of  the  assessment.  The  tax  was 
assessed  under  a  law.  Act  170  of  1898,  which  provided  for  a  levy  of 
annual  taxes  on  the  assessed  value  of  all  property  situated  within  the 
State  of  Louisiana,  and  in  Section  7  provided  as  follows  : 

"  That  it  is  the  duty  of  the  tax  assessors  throughout  the  State  to  place 
upon  the  assessment  list  all  property  subject  to  taxation,  including  mer- 
chandise or  stock  in  trade  on  hand  at  the  date  of  listing  within  their 
respective  districts  or  parishes.  .  .  .  And jyrovided  further,  In  assess- 
ing mercantile  firms  the  true  intent  and  purpose  of  this  act  shall  be  held 
to  mean  the  placing  of  such  value  upon  stock  in  trade,  all  cash,  whether 
borrowed  or  not,  money  at  interest,  open  accounts,  credits,  &c.,  as  will 
represent  in  their  aggregate  a  fair  average  on  the  capital,  both  cash  and 
credits,  employed  in  the  business  of  the  party  or  parties  to  be  assessed. 
And  this  shall  apply  with  equal  force  to  any  person  or  persons  repre- 
senting in  this  State  business  interests  that  may  claim  domicile  else- 
where, the  intent  and  purpose  being  that  no  non-resident,  either  by 
himself  or  through  any  agent,  shall  transact  business  here  without 
paying  to  the  State  a  corresponding  tax  with  that  exacted  of  its  own 
citizens  ;  and  all  bills  receivable,  obligations  or  credits  arising  from  the 
business  done  in  this  State  are  hereby  declared  as  assessable  within 
this  State  and  at  the  business  domicile  of  said  non-resident,  his  agent 
or  representative." 

The  evident  purpose  of  this  law  is  to  lay  the  burden  of  taxation 
equally  upon  those  who  do  business  within  the  State.  It  requires  that 
in  the  valuation  for  the  purposes  of  taxation  of  the  property  of  mercan- 
tile firms  the  stock,  goods,  and  credits  shall  be  taken  into  account,  to 

8 


114  METROPOLITAN    LIFE   INS.    CO.   V.    NEW    ORLEANS.     [CIIAP.  IL 

the  end  that  the  average  capital  employed  in  the  business  shall  be  taxed. 
This  method  of  assessment  is  applied  impartially  to  the  citizens  of  the 
State  and  to  the  citizens  of  other  States  or  countries  doing  business, 
personally  or  through  agents,  within  the  State  of  Louisiana.  To  accom- 
plish this  result,  the  law  expressly  provides  that  "  all  bills  receivable, 
obligations  or  credits  arising  from  the  business  done  in  this  State  shall 
be  assessable  at  the  business  domicile  of  the  resident."  Thus  it  is  clear 
that  the  measure  of  the  taxation  designed  by  the  law  is  the  fair  average 
of  the  cai)ital  employed  in  the  business.  Cash  and  credits  and  bills 
receivable  are  to  be  taken  into  account  merely  because  they  represent 
the  capital  and  are  not  to  be  omitted  because  their  owner  happens  to 
have  a  domicile  in  another  State.  The  law  was  so  construed  by  the 
Supreme  Court  of  Louisiana,  where,  in  sustaining  the  assessment,  it 
was  said  : 

"There  can  be  no  doubt  that  the  seventh  section  of  the  act  of  1898, 
quoted  in  the  judgment  of  the  District  Court,  announced  the  policy  of 
the  State  touching  the  taxation  of  credits  and  bills  of  exchange  repre- 
senting an  amount  of  the  property  of  non-residents  equivalent  or  corre- 
sponding to  said  bills  or  credits  which  was  utilized  by  them  in  the 
prosecution  of  their  business  in  the  State  of  Louisiana.  The  evident 
object  of  the  statute  was  to  do  away  with  discrimination  theretofore  ex- 
isting in  favor  of  non-residents  as  against  residents,  and  place  them  on 
an  equal  footing.  The  statute  was  not  arbitrary,  but  a  legitimate  exer- 
cise of  legislative  power  and  discretion." 

The  tax  was  levied  in  obedience  to  the  law  of  the  State,  and  the  only 
question  here  is  whether  there  is  anything  in  the  Constitution  of  the 
United  States  which  forbids  it.  The  answer  to  that  question  depends 
upon  whether  the  property  taxed  was  within  tlie  territorial  jurisdiction 
of  the  State.  Property  situated  without  that  jurisdiction  is  beyond  the 
State's  taxing  power,  and  the  exaction  of  a  tax  upon  it  is  in  violation 
of  the  Fourteenth  Amendment  to  the  Constitution.  Louisville  Ferry 
Co.  V.  Kentucky,  188  U.  S.  385  ;  Delaware,  &c.,  Railroad  Co.  v.  Penn- 
sylvania, 198  U.  S.  341  ;  Union  Refrigerator  Transit  Co.  c  Kentucky, 
199  U.  S.  194.  But  personal  property  may  be  taxed  in  its  permanent 
abiding  place,  although  the  domicile  of  the  owner  is  elsewhere.  It  is 
usually  easy  to  determine  the  taxable  situs  of  tangible  personal  property. 
But  where  personal  property  is  intangible,  and  consists,  as  in  this  case, 
of  credits  reduced  to  the  concrete  form  of  promissory  notes,  the  inquiry 
IS  complicated,  not  only  by  the  fiction  that  the  domicile  of  personal 
property  follows  that  of  its  owner,  but  also  by  the  doctrine,  based  upon 
historical  reasons,  that  where  debts  have  assumed  the  form  of  bonds  or 
other  specialties,  they  are  regarded  for  some  purposes  as  being  the 
l)ro[)erty  itself,  and  not  the  mere  representative  of  it,  and  may  have  a 
taxal)le  situs  of  their  own.  How  far  promissory  notes  are  assimilated 
to  specialties  in  respect  of  this  doctrine,  need  not  now  be  considered. 

The  question  in  this  case  is  controlled  by  the  authority  of  the  pre- 
vious decisions  of  this  court.     Taxes  under  this  law  of  Louisiana  have 


SECT.  II.]     METROPOLITAls"   LIFE    INS.    CO.   V.    NEW   ORLEANS.  115 

been  twice  considered  liere,  and  assessments  npon  credits  arising  out  of 
investments  in  tlie  State  have  been  sustained.     A  tax  on  credits  evi- 
denced by  notes  secured  by  mortgages  was  sustained  where  the  owner, 
a  non-resident  who  had  inherited  them,  left  them  in  Louisiana  in  the 
possession  of  an  agent,  who  collected  the  principal  and  interest  as  they 
became  due.     New  Orleans  v.  Stempel,  175  U.  S.  309.     Again,  it  was 
held  that  where  a  foreign  banking  company  did  business  in  New  Orleans, 
and  through  an  agent  lent  mone}'  which  was  evidenced  bv  checks  drawn 
upon  the  agent,  treated  as  overdrafts  and  secured  by  collateral,  the 
checks  and  collateral  remaining  in  the  hands  of  the  agent  until  the  trans- 
actions were  closed,  the  credits  thus  evidenced  were  taxable  in  Loui- 
siana.    Board  of  Assessors  r.  Comptoir  National,  191  U.  S.  388.     In 
both  of  tliese  cases  the  written  evidences  of  the  credits  were  continuously 
present  in  the  State,  and  their  presence  was  clearly  the  dominant  factor 
in  the  decisions.     Here  the  notes,  though  present  in  the  State  at  all 
times  when  they  were  needed,  were  not  continuously  present,  and  during 
the  greater  part  of  their  lifetime  were  absent  and  at  their  owner's  dom- 
icile.    Between  these  two  decisions  came  the  case  of  Bristol  v.  Wash- 
ington County,  177  U.  S.  133.     It  appeared  in  that  case  that  a  resident 
of  New  York  was  engaged  through  an  agent  in  the  business  of  lending 
money  in  Minnesota,   secured  by  mortgages  on  real  propert}'.       The 
notes  were  made  to  the  order  of  the  non-resident,  though  payable  in 
Minnesota,  and  the  mortgages  ran  to  her.     The  agent  made  the  loans, 
took  and  kept  the  notes  and  securities,  collected  tlie  interest  and  re- 
ceived payment.     The  property'  thus  invested  continued  to  be  taxed 
without  protest  in  Minnesota,  until  finally  the  course  of  business  was 
changed  by  sending  the  notes  to  the  domicile  of  the  owner  in  New  York, 
where  the}'  were  kept  by  her.     The  mortgages  were,  however,  retained 
by  the  agent  in  Minnesota,  though  his  power  to  discharge  them  was 
revoked.     The  interest  was  paid  to  the  agent  and  the  notes  forwarded 
to  him  for  collection  when  due.     Taxes  levied  after  this  change  in  the 
business  were  in  (|ispute  in  the  case.     In  delivering  the  opinion  of  the 
court,  Mr.  Chief  Justice  Fuller  said  :   "  Nevertheless,  the  business  of 
loaning  money  through  the  agency  in  Minnesota  was  continued  during 
all  these  years,  just  as  it  had  been  carried  on  before,  and  we  agree  with 
the  Circuit  Court  that  the  fact  that  the  notes  were  sent  to  Mrs.  Bristol 
in  New  Yoi'k,  and  the  fact  of  the  revocation  of  the  power  of  attorney, 
did  not  exempt  these  investments  from  taxation  under  the  statutes  as 
expounded  in  the  decisions  to  which  we  have  referred.   ..." 

Referring  to  the  case  of  New  Orleans  v.  Stempel,  the  Chief  Justice 
said  : 

"  There  the  moneys,  notes,  and  other  evidences  of  credits  were  in  fact 
In  Louisiana,  though  their  owners  resided  elsewhere.  Still,  under  the 
circumstances  of  the  case  before  us,  we  think,  as  we  have  said,  that  the 
mere  sending  of  tlie  notes  to  New  York  and  the  revocation  of  the  power 
of  attorne}'  did  not  take  these  investments  out  of  the  rule. 

"  Persons  are  not  permitted  to  avail  themselves,  for  their  own  benefit, 


116  METROPOLITAN    LIFE    INS.    CO.   V.   NEW   ORLEANS.     [CHAP.  XL 

of  the  laws  of  a  State  in  the  conduct  of  business  within  its  limits,  and 
then  to  escape  their  due  contribution  to  the  public  need,  through  action 
of  this  sort,  whether  taken  for  convenience  or  by  design." 

Accordingly  it  was  held  that  the  tax  was  not  forbidden  by  the  Fed- 
eral Constitution. 

In  this  case,  the  controlling  consideration  was  the  presence  in  the 
State  of  the  capital  employed  in  the  business  of  lending  money,  and 
the  fact  that  the  notes  were  not  continuously  present  was  regarded  as 
immaterial.  It  is  impossible  to  distinguish  the  case  now  before  us  from 
the  Bristol  case.  Here  the  loans  were  negotiated,  the  notes  signed,  the 
security  taken,  the  interest  collected,  and  the  debts  paid  within  the  State. 
The  notes  and  securities  were  in  Louisiana  whenever  the  business  exi- 
gencies required  them  to  be  there.  Their  removal  with  the  intent  that 
the}'  shall  return  whenever  needed,  their  long  continued  though  not  per- 
manent absence,  cannot  have  the  effect  of  releasing  them  as  the  repre- 
sentatives of  investments  in  business  in  the  State  from  its  taxing  power. 
The  law  may  well  regard  the  place  of  their  origin,  to  which  they  intend 
to  return,  as  their  true  home,  and  leave  out  of  account  temporary  ab- 
sences, however  long  continued.  Moreover,  neither  the  fiction  that 
personal  property  follows  the  domicile  of  its  owner,  nor  the  doctrine 
that  credits  evidenced  b}'  bonds  or  notes  ma}'  have  the  situs  of  the  lat- 
ter, can  be  allowed  to  obscure  the  truth.  Blackstone  v.  Miller,  188 
U.  S.  189.  We  are  not  dealing  here  merely  with  a  single  credit  or  a 
series  of  separate  credits,  but  with  a  business.  The  insurance  company 
chose  to  enter  into  the  business  of  lending  money  within  the  State  of 
Louisiana,  and  employed  a  local  agent  to  conduct  that  business.  It 
was  conducted  under  the  laws  of  the  State.  The  State  undertook  to  tax 
the  capital  employed  in  the  business  precisely  as  it  taxed  the  capital  of 
its  own  citizens  in  like  situation.  For  the  purpose  of  arriving  at  the 
amount  of  capital  actuall}'  employed,  it  caused  the  credits  arising  out  of 
the  business  to  be  assessed.  We  think  the  State  had  the  power  to  do 
this,  and  that  the  foreigner  doing  business  cannot  escape  taxation  upon 
his  capital  by  removing  temporarily  from  the  State  evidences  of  credits 
in  the  form  of  notes.  Under  such  circumstances,  they  have  a  taxable 
situs  in  the  State  of  their  origin. 

The  judgment  of  the  Supreme  Court  of  Louisiana  is 

Affirmed. 


SECT.    II.]  IN    RE    ESTATE    OF    SWIFT.  117 

In  re  estate  OF   SWIFT. 
Court  of  Appeals  of  New  York.     1893. 

[Reported  137  New  York,  77.] 

Grat,  J.  James  T.  Swift  died  in  July,  1890,  being  a  resident  of 
this  State  and  leaving  a  will,  by  which  he  made  a  disposition  of  all  his 
property  among  relatives.  After  many  legacies  of  money  and  of 
various  articles  of  personal  property*,  he  directed  a  division  of  his 
residuar}'  estate  into  four  portions,  and  he  devised  and  bequeathed  one 
portion  to  each  of  four  persons  named.  The  executors  were  given  a 
power  of  sale  for  the  purpose  of  pa3-ing  the  legacies  and  of  making  the 
distribution  of  the  estate.  At  the  time  of  his  death,  the  testator's 
estate  included  certain  real  estate  and  tangible  personal  property  in 
chattels,  situated  within  the  State  of  New  Jersey,  which  were  realized 
upon  by  the  executors  and  converted  into  moneys  in  hand.  When, 
upon  their  application,  an  appraisement  was  had  of  the  estate,  in  order 
to  fix  its  value  under  the  requirements  of  the  law  taxing  gifts,  legacies, 
and  inheritances,  the  surrogate  of  the  count}'  of  New  York,  before 
whom  the  matter  came,  held,  with  respect  to  the  appraisement,  that 
the  real  and  personal  property  situated  without  the  State  of  New  Y''ork 
were  not  subject  to  appraisal  and  tax  under  the  law,  and  the  excep- 
tions taken  by  the  comptroller  of  the  city  of  New  Y'ork  to  that  deter- 
mination raise  the  first  and  the  principal  question  which  we  shall 
consider. 

Surrogate  Ransom's  opinion,  which  is  before  us  in  the  record,  con- 
tains a  careful  review  of  the  legal  principles  which  limit  the  right  to 
impose  the  tax,  and  his  conclusions  are  as  satisfactory  to  my  mind,  as 
they  evidently  were  to  the  minds  of  the  learned  justices  of  the  General 
Term  of  the  Supreme  Court,  who  agreed  in  aflSrming  the  surrogate's 
decree  upon  his  opinion. 

The  Attorney-General  has  argued  that  this  law,  commonly  called  the 
collateral  inheritance  tax  law,  imposes  not  a  property  tax  but  a  charge 
for  the  privilege  of  acquiring  property,  and,  as  I  apprehend  it,  the 
point  of  his  argument  is  that,  as  there  is  no  absolute  right  to  succeed 
to  property,  the  State  has  a  right  to  annex  a  condition  to  the  permis- 
sion to  take  by  will,  or  by  the  intestate  laws,  in  the  form  of  a  tax,  to 
be  paid  by  the  persons  for  whose  benefit  the  remedial  legislation  has 
been  enacted.  That  is,  substantiall}',  the  way  in  which  he  puts  the 
proposition,  and  if  the  premise  be  true  that  the  tax  imposed  is  upon 
the  privilege  to  acquire,  and,  as  he  says  in  his  brief,  is  like  "a  dut}^ 
imposed,  payable  by  the  beneficiar}-,"  possibly  enough,  we  should  have 
to  agree  with  him.  We  might  think,  in  that  view  of  the  act,  that  the 
situs  of  property  in  a  foreign  jurisdiction  was  not  a  controlling  circum- 
stance. But  if  we  take  up  the  provisions  of  the  law  by  which  the  tax 
is  imposed,  and  if  we  consider  them  as  they  are  framed  and  the  prin* 


118  IN  RE  ESTATE  OF  SWIFT.  [CHAP.  II. 

ciple  which  then  seems  to  underlie  the  peculiar  system  of  taxation 
created,  I  do  not  think  that  his  essential  proposition  finds  adequate 
support.  The  law  in  force  at  the  time  of  the  decease  of  the  testator  is 
contained  in  chapter  713  of  the  Laws  of  1887,  amending  chapter  483 
of  the  Laws  of  1885,  and  is  entitled  "  An  act  to  tax  gifts,  legacies,  and 
collateral  inheritances  in  certain  cases." 

By  the  first  section  it  is  provided  that  "  all  property  which  shall  pass 
by  will  .  .  .  from  any  person  who  maj"  die  seized  or  possessed  of  the 
same,  while  a  resident  of  this  vState,  or,  if  such  decedent  was  not  a 
resident  of  this  State  at  the  time  of  his  death,  which  property  or  any 
part  thereof  shall  be  within  this  State,  .  .  .  shall  be  and  is  subject  to 
a  tax  ...  to  be  paid  ...  for  the  use  of  the  State,"  etc. 

In  the  fourth  section  it  is  provided  that  "  all  taxes  imposed  by  this 
act,  unless  otherwise  herein  provided  for,  shall  be  due  and  payable  at 
the  death  of  the  decedent,"  etc. 

By  the  sixth  section,  it  is  provided  that  the  executor  shall  "  deduct 
the  tax  from  the  legac}-  or  property,  subject  to  said  tax,  or  if  the 
legacy  or  property  be  not  mone}',  he  shall  collect  the  tax  thereon  upon 
the  appraised  value  thereof  from  the  legatee,  or  person  entitled  to  such 
propert}',  and  he  shall  not  deliver,  or  be  compelled  to  deliver,  any  spe- 
cific legacy  or  property  subject  to  tax  to  any  person  until  he  shall  have 
collected  the  tax  thereon,"  etc.  The  language  of  the  act  has  been 
jnstl}'  condemned,  for  being  involved  and  difficult  to  read  clearly;  but 
considering  the  language  employed  in  these  and  in  other  sections  of  the 
law,  in  its  ordinary'  sense,  I  think  we  would  at  once  say  that  if  the 
legislature  had  not  actually'  imposed  a  tax  upon  the  property  itself, 
upon  the  death  of  its  owner,  it  had  certainl}'  intended  to  impose  a  tax 
upon  its  succession,  which  was  to  be  a  charge  upon  the  propert}',  and 
which  operated,  in  effect,  to  diminish  pro  tanto  its  value,  or  the  capi- 
tal, coming  to  the  new  owner  under  a  will,  or  by  the  intestate  laws. 
Could  any  one  sa}',  after  reading  the  provisions  of  this  law,  that  it  was 
the  legatee,  or  person  entitled,  who  was  taxed?  I  doubt  it.  Propert}', 
which  was  the  decedent's  at  the  time  of  his  death,  is  subjected  to  the 
payment  of  a  tax.  The  tax  is  to  be  deducted  from  the  legac}' ;  or, 
when  deduction  is  not  possible  from  the  legac}'  not  being  in  money, 
and  a  collection  from  the  legatee  or  the  person  entitled  to  the  property 
is  authorized  to  be  made,  the  tax  so  to  be  collected  is  described  as 
"  the  tax  thereon,"  tliat  is,  on  the  property. 

If  it  should  be  said  that  such  an  interpretation  of  the  law  is  in  con- 
flict with  a  doctrine  wliich  some  judges  have  asserted,  respecting  the 
nature  of  this  tax,  I  think  it  might  be  sufficient  to  sa}'  that  the  phrase- 
ology of  the  New  York  law  differs,  more  or  less,  from  that  of  other 
States,  and  seems  peculiarly  to  charge  the  subject  of  the  succession 
with  the  payment  of  the  tax.  But  I  do  not  think  it  at  all  important 
to  our  decision  here  that  we  should  hold  it  to  be  a  tax  upon  property 
precisely. 

A  precise  definition  of  the  nature  of  this  tax  is  not  essential,  if  it  is 


1 


SECT.    II.]  IN    RE   ESTATE   OF   SWIFT.  119 

susceptible  of  exact  definition.  Thus  far,  in  this  court,  we  have  not 
thought  it  uecessar}',  in  the  cases  coming  before  us,  to  determine 
whether  the  object  of  taxation  is  the  property  which  passes,  or  not ; 
though,  in  some,  expressions  may  be  found  which  seem  to  regard  the 
tax  in  that  light.  Matter  of  McPherson,  104  N.  Y.  30G ;  IMatter  of 
Enston,  113  id.  174;  Matter  of  Sherwell,  125  id.  379;  Matter  of  Ro- 
maine,  127  id.  80;  and  Matter  of  Stewart,  131  id.  274.  The  idea  of 
this  succession  tax,  as  we  maj'  conveniently  term  it,  is  more  or  less 
compound  ;  the  principal  idea  being  the  subjection  of  property,  owner- 
ship of  which  has  ceased  by  reason  of  the  death  of  its  owner,  to  a 
diminution,  b}'  the  State  reserving  to  itself  a  portion  of  its  amount,  if 
in  money,  or  of  its  appraised  value,  if  in  other  forms  of  property.  The 
accompanying,  or  the  correlative  idea  should  necessarily  be  that  the 
property,  over  which  such  dominion  is  thus  exercised,  shall  be  within 
the  territorial  limits  of  the  State  at  its  owner's  death,  and,  therefore, 
subject  to  the  operation  and  the  regulation  of  its  laws.  The  State,  in 
exercising  its  power  to  subject  realty,  or  tangible  propertj-,  to  the 
operation  of  a  tax,  must,  by  every  rule,  be  limited  to  property  within 
its  territorial  confines. 

The  question  here  does  not  relate  to  the  power  of  the  State  to  tax 
its  residents  with  respect  to  the  ownership  of  property  situated  else- 
where. That  question  is  not  involved.  The  question  is  whether  the 
legislature  of  the  State,  in  creating  this  system  of  taxation  of  inlierit- 
ances,  or  testamentar}'  gifts,  has  not  fixed  as  the  standard  of  right  the 
property'  passing  by  will,  or  b}'  the  intestate  laws. 

What  has  the  vState  done,  in  effect,  by  the  enactment  of  this  tax  law? 
It  reaches  out  and  appropriates  for  its  use  a  portion  of  the  property'  at 
the  moment  of  its  ownei''s  decease  ,  allowing  only  the  balance  to  pass 
in  the  wa}'  directed  by  testator,  or  permitted  by  its  intestate  law,  and 
while,  in  so  doing,  it  is  exercising  an  inherent  and  sovereign  right,  it 
seems  very  clear  to  mj'  mind  that  it  affects  only  property  which  lies 
within  it,  and,  consequently,  is  subject  to  its  right  of  eminent  domain. 
The  theory  of  sovereignty,  which  invests  the  State  with  the  right  and 
the  power  to  permit  and  to  regulate  the  succession  to  property  upon 
its  owner's  decease,  rests  upon  the  fact  of  an  actual  dominion  over 
that  propert}'.  In  exercising  such  a  power  of  taxation,  as  is  here  in 
question,  the  principle,  obviously,  is  that  all  property-  in  the  State  is 
tributary  for  such  a  purpose  and  the  sovereign  power  takes  a  portion, 
or  percentage  of  the  propert}',  not  because  the  legatee  is  subject  to 
its  laws  and  to  the  tax,  but  because  the  State  has  a  superior  right,  or 
ownership,  by  force  of  which  it  can  intercept  the  propert}',  upon  its 
owner's  death,  in  its  passage  into  an  ownership  regulated  by  the  en- 
abling legislation  of  the  State. 

The  rules  of  taxation  have  become  pretty  well  settled,  and  it  is  fun- 
damental among  them  that  there  shall  be  jurisdiction  over  the  subject 
taxed;  or,  as  it  has  been  sometimes  expressed,  the  taxing  power  of 
the  State  is  coextensive  with  its  sovereignty.     It  has  not  the  power  to 


120  IN   RE   ESTATE   OF   SWIFT.  [CHAP.    II. 

tax  directly  either  lands  or  tangible  personal  property  situated  in  an- 
other State  or  country.  As  to  the  latter  description  of  property  no 
fiction  transmuting  its  situs  to  the  domicile  of  the  owner  is  available, 
when  the  question  is  one  of  taxation.  In  this  connection  the  observa- 
tions of  Chief  Judge  Comstock,  in  Hoyt  v.  Commissioners  of  Taxes, 
23  N.  Y.  224,  and  of  some  text-writers,  are  not  inappropriately  referred 
to.  He  had  said  that  lands  and  personal  property  having  an  actual 
situation  within  the  State  are  taxable,  and,  by  a  necessary  implication, 
that  no  other  propert}'  can  be  taxed.  He  says,  further,  "  If  we  say  that 
taxation  is  on  the  person  in  respect  to  the  property,  we  are  still  without 
a  reason  for  assessing  the  owner  resident  here  in  respect  to  one  part 
of  his  estate  situated  elsewhere  and  not  in  respect  to  another  part. 
Both  are  the  subjects  of  taxation  in  the  foreign  jurisdiction." 

In  Judge  Cooley's  work  on  Taxation  it  is  remarked  (p.  159)  that 
"  a  State  can  no  more  subject  to  its  power  a  single  person,  or  a  single 
article  of  property,  whose  residence  or  situs  is  in  another  State,  than 
it  can  subject  all  the  citizens,  or  all  the  property'  of  such  other  State  to 
its  power." 

Judge  Cooley  had  reference  in  his  remarks  to  the  case  of  bonds  of  a 
railroad;  for  he  cites  the  case  of  "the  State  Tax  on  Foreign-Held 
Bonds"  in  the  United  States  Supreme  Court  (15  Wallace,  300),  where 
Mr.  Justice  Field  delivered  the  opinion,  and,  in  the  course  of  it,  observed 
that  "  the  power  of  taxation,  however  vast  in  its  character  and  search- 
ing in  its  extent,  is  necessarily  limited  to  subjects  within  the  jurisdic- 
tion of  the  State." 

Judge  Story,  in  his  work  on  the  Conflict  of  Laws,  speaking  of  the 
subject  of  jurisdiction  in  regard  to  property,  said  (section  550)  that 
the  legal  fiction  as  to  the  situs  of  movables  yields  when  it  is  necessary 
for  the  purpose  of  justice,  and,  further,  "  a  nation  within  whose  terri- 
tory any  personal  property  is  actually  situated  has  an  entire  dominion 
over  it  while  therein,  in  point  of  sovereignty  and  jurisdiction,  as  it  has 
over  immovable  propert}'  situated  there." 

The  proposition  which  suggests  itself  from  reasoning,  as  from  author- 
it}-,  is  that  the  basis  of  the  power  to  tax  is  the  fact  of  an  actual  domin- 
ion over  the  subject  of  taxation  at  the  time  the  tax  is  to  be  imposed. 

The  effect  of  this  special  tax  is  to  take  from  the  i)roperty  a  i)ortion, 
or  a  percentage  of  it,  for  the  use  of  the  State,  and  I  think  it  quite 
immaterial  whether  the  tax  can  be  precisely  classified  with  a  taxation 
of  property  or  not.  It  is  not  a  tax  upon  persons.  If  it  is  called  a  tax 
upon  the  succession  to  the  ownership  of  property,  still  it  relates  to 
and  subjects  the  property  itself,  and  when  that  is  without  tlie  jurisdic- 
tion of  the  State,  inasmuch  as  the  succession  is  not  of  property  within 
the  dominion  of  the  State,  succession  to  it  cannot  be  said  to  occur  b\' 
permission  of  the  State.  As  to  lands  this  is  clearly  the  case,  and 
rights  in  or  power  over  them  are  derived  from  or  through  the  laws  of 
the  foreign  State  or  country.  As  to  goods  and  chattels  it  is  true  ;  for 
their  transmission  abroad  is  subject  to  the  permission  of  and  regulated 


SECT.    II.]  IN    EE   ESTATE    OF   SWIFT.  121 

by  the  laws  of  the  State  or  country  where  actually  situated.  Jurisdic- 
tion over  them  belongs  to  the  courts  of  that  State  or  country  for  all 
purposes  of  policy,  or  of  administration  in  the  interests  of  its  citzens, 
or  of  those  having  enforceable  riglits,  and  their  surrender,  or  transmis- 
sion, is  upon  priucii)les  of  comity. 

When  succession  to  the  ownership  of  property  is  by  the  permission 
of  the  State,  then  the  permission  can  relate  only  to  property  over  which 
the  State  has  dominion  and  as  to  which  it  grants  the  privileo"e  or 
permission. 

Nor  is  the  argument  available  that,  by  the  power  of  sale  conferred 
upon  the  executors,  there  was  an  equitable  conversion  worked  of  the 
lands  in  New  Jersey,  as  of  the  time  of  the  testator's  death,  and,  hence, 
that  the  property  sought  to  be  reached  by  the  tax,  in  the  eye  of  the 
law,  existed  as  cash  in  this  State  in  the  executor's  hands,  at  the 
moment  of  the  testator's  death.  There  might  be  some  doubt  whether 
the  main  proposition  in  the  argument  is  quite  correct,  and  wlietlier  the 
land  did  not  vest  in  the  residuar\-  legatees,  subject  to  the  execution  of 
the  power  of  sale.  But  it  is  not  necessary  to  decide  that  question. 
Neither  the  doctrine  of  equitable  conversion  of  lands,  nor  anv  fiction 
of  situs  of  movables,  can  have  any  bearing  upon  the  question  under 
advisement.  The  question  of  the  jurisdiction  of  the  State  to  tax  is  one 
of  fact  and  cannot  turn  upon  theories  or  fictions  ;  which,  as  it  has  been 
observed,  have  no  place  in  a  well  adjusted  system  of  taxation. 

We  can  arrive  at  no  other  conclusion,  in  m}-  opinion,  than  that 
the  tax  provided  for  in  this  law  is  onl}'  enforceable  as  to  property 
which,  at  the  time  of  its  owner's  death,  was  within  the  territorial  limits 
of  this  State.  As  a  law  imposing  a  special  tax,  it  is  to  be  strictly 
construed  against  the  State  and  a  case  must  be  clearly  made  out  for  its 
application.  We  should  incline  against  a  construction  which  might 
lead  to  double  taxation  ;  a  result  possible  and  probable  under  a  dif- 
ferent view  of  this  law.  If  the  property  in  the  foreign  jurisdiction  was 
in  land,  or  in  goods  and  chattels,  when,  upon  the  testator's  death,  a 
new  title,  or  ownership,  attached  to  it,  the  bringing  into  this  State  of 
its  cash  proceeds,  subsequently,  no  matter  by  what  authority  of  will, 
or  of  statute,  did  not  subject  it  to  the  tax.  A  different  view  would  be 
against  every  sound  consideration  of  what  constitutes  the  basis  for 
such  taxation,  and  would  not  accord  with  an  understanding  of  the 
intention  of  the  legislature,  as  more  or  less  plainly  expressed  in  these 
acts. 

Another  question,  which  I  shall  merely  advert  to  in  conclusion, 
arises  upon  a  ruling  of  the  surrogate  with  respect  to  appraisement,  in 
connection  with  a  clause  of  the  will  directing  that  the  amount  of  the 
tax  upon  the  legacies  and  devises  should  be  paid  as  an  expense  of 
administration.  The  appraiser,  in  ascertaining  the  value  of  the  residu- 
ary estate  for  the  purpose  of  taxation,  deducted  the  amount  of  the  tax 
to  be  assessed  on  prior  legacies.  The  surrogate  overruled  him  in  this, 
and  held  that  there  should  be  no  deduction  from  the  value  of  the  resid- 


122  IN   RE    ESTATE    OF    SWIFT.  [CHAP.  II. 

uar}'  estate  of  the  amount  of  the  tax  to  be  assessed,  either  upon  prior 
legacies,  or  upon  its  vahie.  He  held  that  the  legacies  taxable  should 
be  reported,  irrespective  of  the  provision  of  the  will ;  and  that  a  mode 
of  payment  of  the  succession  tax  prescribed  b}'  will  is  something  with 
which  the  statute  is  not  concerned.  I  am  satisfied  with  his  reasoning 
and  can  add  nothing  to  its  force.  Manifestly,  under  the  law  that 
which  is  to  be  reported  by  the  appraiser  for  the  purpose  of  the  tax  is 
the  value  of  the  interest  passing  to  the  legatee  under  the  will,  without 
any  deduction  for  an}'  purpose,  or  under  an}^  testamentar}'  direction. 

A  question  is  raised  as  to  the  effect  upon  the  law,  as  contained  in 
the  acts  of  1885  and  1887,  of  the  passage  of  chapter  215  of  the  Laws 
of  1891  ;  but  as  that  has  been  the  subject  of  another  appeal,  and  is 
fully  discussed  in  the  opinion  in  the  Matter  of  the  Estate  of  Prime,  136 
N.  Y.  347,  reference  will  be  made  to  it  here. 

My  brethren  are  of  the  opinion  that  the  tax  imposed  under  the  act  is 
a  tax  on  the  riglit  of  succession,  under  a  will,  or  by  devolution  in  case 
of  intestacy  ;  a  view  of  the  law  which  m}-  consideration  of  the  question 
precludes  m}"  assenting  to. 

They  concur  in  ni}'  opinion  so  far  as  it  relates  to  the  imposition  of  a 
tax  upon  real  estate  situated  out  of  this  State,  although  owned  by  a 
decedent,  residing  here  at  the  time  of  his  decease;  holding  with  me 
that  taxation  of  such  was  not  intended,  and  that  the  doctrine  of  equi- 
table conversion  is  not  applicable  to  subject  it  to  taxation.  But  as  to 
the  personal  property  of  a  resident  decedent,  wheresoever  situated, 
whether  within  or  without  the  State,  they  are  of  the  opinion  that  it  is 
subject  to  the  tax  imposed  by  the  act. 

The  judgment  below,  therefore,  should  be  so  modified  as  to  exclude 
from  its  operation  the  personal  property  in  New  Jersey',  and,  as  so 
modified,  it  should  be  affirmed,  without  costs  to  either  party  as  against 
the  other. 


I 


SECT.  II.]  MATTER   OF   COOLEY.  123 


MATTER  OF  COOLEY. 

Court  of  Appeals,  New  York.     1906. 
[Reported  186  N.  Y.  220.] 

HiscoCK,  J.  The  appellants  complain  because  in  fixing  the  transfer 
tax  upon  certain  shares  of  the  capital  stock  of  the  Boston  and  Albany 
Railroad  Company  which  belonged  to  the  estate  and  passed  under  the 
will  of  the  deceased  who  was  a  non-resident,  said  stock  has  been  ap- 
praised at  its  full  market  value  as  representing  an  interest  in  the  prop- 
erty of  said  corporation  situate  both  in  the  State  of  New  York  and 
elsewhere.  It  is  insisted  by  them  that  under  the  peculiar  facts  of  this 
case  the  valuation  placed  for  such  purpose  upon  the  stock  should  not 
have  been  predicated  upon  the  idea  that  the  latter  represented  an  in- 
tei'est  in  all  of  the  property  of  said  corporation,  but  should  have  been 
fixed  upon  the  theory  that  it  represented  an  interest  in  only  a  portion 
of  said  property. 

I  think  that  their  complaint  is  well  founded  and  that  the  order 
appealed  from  should  be  reversed  and  the  assessment  corrected 
accordingl}'. 

The  Boston  and  Albany  Railroad  Compan}'  is  a  consolidation  formed 
b}"  the  merger  of  one  or  more  New  York  corporations  and  one  Massa-' 
chusetts  corporation.  The  merger  was  authorized  and  the  said  consoli- 
dated corporation  duly  and  separatel}'  created  and  organized  under  the 
laws  of  each  state.  It  was,  so  to  speak,  incorporated  in  duplicji,te. 
There  is  but  a  single  issue  of  capital  stock  representing  all  the  prop- 
erty of  the  consolidated  and  dual  organization.  Of  the  track  mileage 
about  five-sixths  is  in  Massachusetts  and  one-sixth  in  New  York.  The 
principal  offices,  including  the  stock  transfer  office,  are  situated  in 
Boston,  and  there  also  are  regularl}'  held  the  meetings  of  its  stock- 
holders and  directors.  The  deceased  was  a  resident  of  the  State  of 
Connecticut,  and  owned  four  hundred  and  twenty-six  shares  of  the 
capital  stock,  the  value  of  which  for  the  purposes  of  the  transfer  tax 
was  fixed  at  the  full  market  value  of  $252.50  per  share  of  the  par  value 
of  $100. 

The  provisions  of  the  statute  (L.  1896,  ch.  908,  §  220,  as  amd.  L. 
1897,  ch.  284,  §  2),  authorizing  the  imposition  of  this  tax  are  familiar, 
and  read  in  part  as  follows : 

"  A  tax  shall  be  and  is  hereby  imposed  upon  the  transfer  of  any 
property,  real  or  personal,  of  the  value  of  five  hundred  dollars  or  over, 
or  of  any  interest  therein  ...  in  the  following  cases  :  .  .   . 

"  2.  When  the  transfer  is  by  will  or  intestate  law,  of  property  within 
the  State,  and  the  decedent  was  a  non-resident  of  the  State  at  the  time 
of  his  death." 

The  present  assessment  is  under  the  last  clause,  and  as  alread}'  inti' 


124  MATTER    OF   COOLEY.  [CHAP.  IL 

mated,  the  sole  question,  stated  in  practical  form,  is  whether  the 
authorities  of  this  State  ought  to  levy  a  tax  upon  the  full  value  of  de- 
cedeirt's  holdings,  recognizing  simply  the  New  York  corporation  and 
regarding  it  as  the  sole  owner  of  all  of  the  property'  of  the  doubh'  in- 
corporated New  York-Massachusetts  corporation,  or  whether  they 
should  limit  the  tax  to  a  portion  of  the  total  value,  upon  the  theory  that 
the  company  holds  its  property  in  Massachusetts  at  least  under,  its 
incorporation  in  that  State. 

By  seeking  the  aid  of  our  laws  and  becoming  incorporated  under 
them,  the  consolidated  Boston  and  Albany  Railroad  Companj'  became 
a  domestic  corporation.     (Matter  of  Sage,  70  N.  Y.  220.) 

The  decedent,  therefore,  as  the  owner  of  Boston  and  Albany  stock, 
ma}'  be  regarded  as  holding  stock  in  a  domestic  corporation,  and  it  is  so 
clearly  settled  that  we  need  only  state  the  proposition  that  capital  stock 
in  a  domestic  corporation,  although  held  b}'  a  non-resident,  will  be  re- 
garded as  having  its  situs  where  the  corporation  is  organized,  and  is, 
therefore,  taxable  in  this  State.     (Matter  of  Bronson,  150  N.  Y.  1.) 

There  is,  therefore,  no  question  but  that  the  decedent,  holding  stock 
in  the  Boston  and  Albany  road,  which  was  incorporated  under  the  laws 
of  this  State,  left  "  property  within  the  State  "  which  is  taxable  here. 
There  is  no  doubt  about  the  meaning  of  "  property  within  the  State," 
as  applied  to  this  situation,  or  that  it  justifies  a  taxation  b}'  our  au- 
thorities of  decedent's  interest  as  a  shareholder  in  the  corporation 
created  under  the  laws  of  this  State.  The  only  doubt  is  as  to  the 
extent  and  value  of  that  interest  for  the  purposes  of  this  proceeding. 
For,  although  the  tax  is  upon  the  transfer  and  not  upon  the  property 
itself,  still  its  amount  is  necessarily  measured  by  the  value  of  the 
property  transferred,  and,  therefore,  we  come  to  consider  briefly  the 
nature  of  the  stock  here  assessed  as  property  and  the  theorj-  upon 
which  its  value  should  be  computed. 

The  general  nature  of  a  shareholder's  interest  in  the  capital  stock  of 
a  corporation  is  easily  understood  and  defined.  In  Plympton  v.  Bige- 
low  (93  N,  Y.  592y  it  is  said  that  "  The  right  which  a  shareholder  in  a 
corporation  has  b}'  reason  of  his  ownership  of  shares  is  a  right  to  par- 
ticipate according  to  the  amount  of  his  stock  in  the  surplus  profits  of 
the  corporation  on  a  division,  and  ultimately  on  its  dissolution,  in  the 
assets  remaining  after  payment  of  its  debts." 

In  Jermain  y.  L.  S.  &  M.  S.  Ry.  Co.  (91  N.  Y.  483,  491)  it  was 
said  :  "  A  share  of  stock  represents  the  interest  which  the  shareholder 
has  in  the  capital  and  net  earnings  of  the  corporation." 

Therefore,  since  the  shares  of  capital  stock  under  discussion  repre- 
sented a  certain  interest  in  the  surplus  of  assets  over  liabilities  of  the 
Boston  and  Albany  Railroad  Company,  the  value  of  that  stock  is  to  be 
decided  by  reference  to  the  amount  of  property  which  said  railroad  com- 
pany as  incorporated  in  this  State  is  to  be  regarded  as  owning  for 
the  purposes  of  this  proceeding. 


SECT.  II.]  MATTER   OF   COOLEY.  125 

In  the  majorit}'  of  cases  at  least  a  corporation  has  but  a  single 
corporate  creation  and  existence  under  the  laws  of  one  State,  and  by 
virtue  of  such  single  existence  owns  all  of  its  corporate  property. 
There  is  no  difficulty  in  determining  in  such  a  case  that  a  shareholder 
under  such  an  incorporation  has  an  interest  in  all  of  the  corporate 
property  wherever  and  in  how  man}-  different  States  situated.  I  shall 
have  occasion  to  refer  to  that  principle  hereafter  in  another  connection. 
Even  in  the  case  of  a  corporation  incorporated  and  having  a  separate 
existence  under  the  laws  of  more  than  one  State,  the  stockholder  would 
for  some  purposes  be  regarded  as  having  an  interest  in  all  the  cor- 
porate property'  independent  of  the  different  incorporations.  In  tlie 
present  case  the  decedent,  by  virtue  of  his  stock  as  between  him 
and  the  corporation,  would  be  regarded  as  having  an  interest  in  all  of 
its  property  and  entitled  to  the  earnings  thereon  when  distributed  as 
dividends  and  to  his  share  of  the  surplus  upon  dissolution  and  liquida- 
tion proceedings  independent  of  the  fact  that  there  were  two  separate 
incorporations. 

But,  as  it  seems  to  me,  different  considerations  and  principles  apply 
to  this  proceeding  now  before  us  for  review.  Our  jurisdiction  to  assess 
decedent's  stock  is  based  solely  and  exclusively  upon  the  theory  that 
it  is  held  in  the  Boston  and  Albany  Railroad  Compan\'  as  a  New  York 
corporation.  The  authorities  are  asserting  jurisdiction  of  and  assessing 
his  stock  only  because  it  is  held  in  the  New  York  corporation  of  the 
Boston  and  Albany  Railroad  Companj'.  But  we  know  that  said  com- 
pany is  also  incorporated  as  a  Massachusetts  corporation,  and  presura- 
abl}^  by  virtue  of  such  latter  incorporation  it  has  the  same  powers  of 
owning  and  managing  corporate  property  which  it  possesses  as  a  New 
York  corporation.  In  fact  the  location  of  physical  property  and  the 
exercise  of  various  corporate  functions  give  greater  importance  to  the 
Massachusetts  than  to  the  New  York  corporation,  and  the  problem  is 
whether  for  the  purpose  of  levj'ing  a  tax  upon  decedent's  stock  upon 
the  theory  that  it  is  held  in  and  under  the  New  York  corporation  we 
ought  to  say  that  such  latter  corporation  owns  and  holds  all  of  the 
property  of  the  consolidated  corporation  wherever  situated,  thus  entirely 
ignoring  the  existence  of  and  the  ownership  of  property  b\-  the  Massa- 
chusetts corporation.  It  needs  no  particular  illumination  to  demon- 
strate that  if  we  take  such  a  view  it  will  clearly  pave  the  way  to  a 
corresponding  view  by  the  authorities  and  courts  of  Massachusetts 
that  the  corporation  in  that  State  owns  all  of  the  corporate  property 
wherever  situated,  and  we  shall  then  further  and  directly  be  led  to  the 
unreasonable  and  illogical  result  that  one  set  of  property'  is  at  the  same 
time  solely  and  exclusivel}'  owned  by  two  different  corporations,  and 
that  a  person  holding  stock  should  be  assessed  upon  the  full  value  of 
his  stock  in  each  jurisdiction.  Whether  we  regard  such  a  tax  as  is 
here  being  imposed,  a  recompense  to  the  State  for  protection  afforded 
during  the  life  of  the  decedent  or  as  a  condition  imposed  for  creating 


126  MATTER   OF   COOLEY.  [CHAP.  II. 

and  allowing  certain  rights  of  transfer  or  of  succession  to  property  upon 
death,  we  shall  have  each  State  exacting  full  compensation  upon  one 
succession  and  a  clear  case  of  double  taxation.  And  if  the  corporation 
had  been  compelled  for  sufficient  reasons  to  take  out  incorporation  in 
six  or  twenty  other  States  each  one  of  them  might  take  the  same  view 
and  insist  upon  the  same  exaction  until  the  value  of  the  property  was 
in  whole  or  large  proportion  exhausted  in  paying  for  the  privilege 
of  succession  to  it.  While  undoubtedly  the  legislative  authority  is 
potent  enough  to  prescribe  and  enforce  double  taxation,  it  is  plain  that, 
measured  by  ordinary  principles  of  justice,  the  result  suggested  would 
be  inequitable  and  might  be  seriously  burdensome. 

Double  taxation  is  one  which  the  courts  should  avoid  whenever  it  is 
possible  within  reason  to  do  so.  (Matter  of  James,  144  N.  Y.  G,  11.) 
It  is  never  to  be  presumed.  Sometimes  tax  laws  have  that  effect, 
but  if  they  do  it  is  because  the  legislature  has  unmistakably  so  enacted. 
All  presumptions  are  against  such  an  imposition.  (Tennessee  v.  Whit- 
worth,  117  U.  S.  129.) 

The  law  of  taxation  is  to  be  construed  strictl}'  against  the  State  in 
favor  of  the  taxpayer,  as  represented  by  the  executor  of  the  estate. 
(Matter  of  Fayerweather,  143  N.  Y.  114.) 

It  seems  pretty  clear  that  within  the  principles  of  the  foregoing  and 
many  other  cases  which  might  be  cited,  we  ought  not  to  sanction  a 
course  which  will  lead  to  a  tax,  measured  b}'  the  full  value  of  the  dece- 
dent's stock  in  each  State  upon  the  conflicting  theories  that  the  corpo- 
ration in  that  State  owns  all  of  the  property  of  the  consolidated 
compan}',  unless  there  is  something  in  the  statute,  or  decisions  under 
the  statute,  which  compels  us  so  to  do.  I  do  not  think  there  is  in 
either  place  such  compelling  authority. 

No  doubt  is  involved,  as  it  seems  to  me,  about  the  meaning  and  ap- 
plication of  the  statute.  The  decedent's  stock  was  "property  within 
the  State,"  which  had  its  situshere  as  being  held  in  the  New  York  cor- 
poration, and  the  transfer  of  it  was  taxable  here.  There  can  be  no 
dispute  about  that.  The  question  is  simply  over  the  extent  and  value 
of  his  interest  as  such  stockholder,  in  view  of  the  other  incorporation 
in  Massachusetts-.  I  see  nothing  in  the  statute  which  prevents  us  from 
paying  decent  regard  to  the  principles  of  interstate  comity,  and  from 
adopting  a  policN'  which  will  enable  each  State  fairly  to  enforce  its  own 
laws  without  oppression  to  the  subject.  This  result  will  be  attained  by 
regarding  the  New  York  corporation  as  owning  the  propert}'  situate  in 
New  York  and  the  Massachusetts  corporation  as  owning  that  situate  in 
Massachusetts,  and  each  as  owning  a  sliare  of  any  propoity  situate  out- 
side of  either  State  or  moving  to  and  fro  between  the  two  States,  and 
assessing  decedent's  stock  upon  that  theor}'.  That  is  the  obvious  basis 
for  a  valuation  if  we  are  to  leave  any  room  for  the  Massachusetts 
corporation  and  for  a  taxation  by  that  State  similar  in  principle  to  our 
own  without  double  taxation. 


SECT.  II.]  MATTEE   OF   COOLEY.  127 

Some  illustrations  may  be  referred  to  which  by  analog}'  sustain  the 
general  principles  involved. 

"Where  a  tax  is  levied  in  this  State  upon  the  capital  or  franchises  of 
a  corporation  organized  as  this  railroad  was,  the  tax  is  levied  upon  an 
equitable  basis.  Thus  by  the  provisions  of  section  6  of  chapter  19  of 
the  Laws  of  1869,  under  which  the  Boston  and  Albany  railroad  was 
organized,  the  assessment  and  taxation  of  its  capital  stock  in  this  State 
is  to  be  in  the  proportion  "  that  the  number  of  miles  of  its  railroad 
situated  in  this  State  bears  to  the  number  of  miles  of  its  railroad 
situated  in  the  other  State,"  and  under  section  182  of  the  General  Tax 
Law  of  the  State  of  New  York  the  franchise  tax  of  a  corporation  is 
based  upon  the  amount  of  capital  within  the  State. 

Again,  assume  that  for  purposes  of  dissolution  or  otherwise,  re- 
ceivers were  to  be  appointed  of  the  Boston  and  Albany  railroad,  there 
can  be  no  doubt  that  the  receivers  of  it  as  a  New  York  corporation 
would  be  appointed  b}'  the  courts  of  that  State,  and  the  receivers  of  it 
as  a  Massachusetts  corporation  would  be  appointed  b}'  the  courts  of 
that  State,  and  that  the  courts  would  hold  that  in  the  discharge  of  their 
duties  the  New  York  receivers  should  take  possession  of  and  admin- 
ister upon  the  property  of  the  New  York  corporation  within  the  limits 
of  that  State,  and  would  not  permit  the  Massachusetts  receivers  to 
come  within  its  confines  and  interfere  with  such  ownership,  and  the 
Massachusetts  courts  would  follow  a  similar  policy.  Why  should  not 
the  State  authorities  for  purposes  of  this  species  of  taxation  and  valua- 
tion, involved  therein,  adopt  a  similar  theory  of  division  of  property  ? 

We  are  not  apprehensive  lest,  as  suggested.  New  York  corpora- 
tions may  take  out  incorporation  in  other  States  for  the  purpose  of  ex- 
empting transfers  of  their  capital  stock  from  taxation  under  the 
principles  of  this  decision.  We  do  not  regard  our  decision  as  giving 
encouragement  to  any  such  course.  It  is  based  upon  and  limited  by 
the  facts  as  they  are  here  presented,  and  there  is  no  question  whatever 
but  that  the  Boston  and  Albany  railroad,  in  good  faith  and  for  legitimate 
reasons,  was  equally  and  contemporaneously  created  both  as  a  New 
York  and  a  Massachusetts  corporation.  It  can  no  more  be  said  that 
being  originally  and  properly  a  New  York  corporation  it  subsequentl}- 
and  incidentally  became  a  Massachusetts  one  than  could  be  maintained 
the  reverse  of  such  proposition.  If  in  the  future  a  corporation  created 
and  organized  under  the  laws  of  this  State,  or  properly  and  really  to 
be  regarded  as  a  New  York  corporation,  shall  see  fit  either  for  the  pur- 
pose suggested,  or  for  an}-  other  reason  subsequently  and  incidentally 
and  for  ancillai'y  reasons,  to  take  out  incorporation  in  another  State,  a 
case  would  arise  not  falling  within  this  decision. 

But  it  is  said  that  this  court  lias  already  made  decisions  which  pre- 
vent it  from  adopting  such  a  construction  as  I  have  outlined,  and 
reference  is  made  to  Matter  of  Bronson  (150  N.  Y.  1)  and  Matter  of 
Palmer  (183  N.  Y.  238). 


128  MATTER    OF   COOLEY.  [CHAP.  II. 

I  do  not  find  anything  in  those  decisions  which,  interpreted  as  a 
whole,  with  reference  to  the  facts  there  being  discussed,  conflicts  with 
the  views  which  I  have  advanced. 

In  the  first  case  tlie  question  arose  whether  a  tax  might  be  imposed 
upon  a  transfer  of  a  non-resident  decedent's  residuary  estate  wliich 
"  consisted  in  shares  of  the  capital  stock  and  in  the  bonds  of  corpora- 
tions incorporated  under  the  laws  of  this  State."     So  far  as  the  discus- 
sion relates  to  the  question  of  taxing  the  bonds,  it  is  immaterial.     It 
was  held  that  the  shares  of  capital  stock  were  property  which  was  taxa- 
ble, it  beino-  said  :   "  The  shareholders  are  persons  who  are  interested  in 
the  operation  of  the  corporate  property  and  franchises,  and  their  shares 
actually  represent  undivided  interests  in  the  corporate  enterprise.     The 
corporation  has  the  legal  title  to  all  the  properties  acquired  and  appurte- 
nant, but  it  holds  them  for  the  pecuniary  benefit  of  those  persons  who 
hold  the  capital  stock.  .  .   .   Each  share  represents  a  distinct  interest 
in  the  whole  of  the  corporate  property."     In  other  words.  Judge  Gray, 
in  writing  the  majority  opinion,  was  discussing  the  situation  of  a  share- 
holder in  a  domestic  corporation  which,  so  far  as  appears,  was  not 
incorporated  under  the  laws  of  another  State.     Under   such  circum- 
stances, of  course,  the  New  York  corporation  would  be  the  owner  of 
all  the  property  there  was,  and  the  shareholder's  interest  in  such  corpo- 
ration would  represent  his  interest  in  all  of  said  property  and  be  fairly 
and  justly  taxable  upon  its  full  amount  and  value.    No  such  situation  was 
presented  as  here  arises.     There  was  no  second  or  third  corporation 
under  the  laws  of  another  State,  which  corporation  might  just  as  fairly 
be  said  to  be  the  owner  of  all  the  property  as  the  New  York  corpora- 
tion, thus  raising  the  question  here  presented  whether  each  corporation 
should  be  regarded   as  owning  and   holding  all  of  the  property  there 
was  for  the  purpose  of  laying  the  basis  for  taxation,  or  whether  we 
should  adopt  an  equitable  and  reasonable  view,  giving  credit  to  each 
corporation  for  the  purpose  of  taxation  of  owning  some  certain  portion 
of  the  entire  property. 

In  the  Palmer  case  again  the  question  arose  over  taxing  shares  of 
stock  held  by  a  non-resident  decedent  in  a  domestic  corporation  which 
was  not  proved  or  considered  to  have  been  incorporated  under  the 
laws  of  another  State.  It  was  insisted  that  the  amount  of  the  tax 
should  be  reduced  by  the  proportion  of  property  owned  by  the  corpo- 
ration and  located  in  other  States,  and  tliis  contention  was  overruled, 
and,  as  it  seems  to  me,  for  a  perfectly  good  reason  upon  the  facts  in 
that  case  and  which  is  not  ai)plicable  to  the  facts  here.  As  stated, 
there  was  a  single  incorporation  under  the  laws  of  tliis  State,  and  that 
domestic  corporation  owned  all  of  the  property  in  wliatever  State  situ- 
ated. Its  corporate  origin  was  under  the  laws  of  this  State,  and  there 
its  corporate  existence  was  centred.  It  just  as  fully  and  completely 
owned  and  managed  property  situated  in  the  State  of  Ohio  as  if  it  was 
situated  in  the  State  of  New  York,  and  if  the  property  in  the  foreign 


SECT.  II,]  MATTER    OF    COOLEY.  129 

State  was  reduced  to  money,  such  money  would  be  turned  into  its 
treasury  In  the  State  of  New  York.  Under  such  circumstances  there 
was  nothing  else  that  could  reasonably  be  held  than  that  the  corpora- 
tion owned  all  property  wherever  situated,  and  that  the  sharehold- 
er's interest  in  such  corporation  represented  and  was  based  upon  such 
ownership  of  all  the  property.  There  was  no  double  incorporation  and 
no  chance  for  conflict  between  an  incorporation  under  the  laws  of  this 
State  and  a  second  one  existing  under  the  laws  of  another  State,  which 
must  either  be  reconciled  by  a  just  regard  for  the  rights  of  both  States 
and  the  rights  of  the  incorporation  under  each,  or  else  double  taxation 
imposed  upon  a  shareholder. 

It  is  also  argued  that  the  courts  of  Massachusetts  have  passed  upon 
the  very  contention  here  being  made  by  appellants,  and  in  the  case  of 
Moody  V.  Shaw  (178  Mass.  375)  have  rejected  the  claim  that  the  valu- 
ation of  stock  in  this  same  corporation  for  the  purposes  of  transfer 
taxation  in  Massachusetts  should  be  based  upon  any  apportionment  of 
property  between  the  Massachusetts  and  New  York  corporations. 
The  opinion  in  that  case  does  not  seem  to  warrant  any  such  con- 
struction. Apparently  the  only  question  under  discussion  was  whether 
the  transfer  of  stock  in  such  corporation  was  taxable  at  all  in  Massa- 
chusetts, and  the  question  of  any  apportionment  was  not  passed  upon. 
Such  expressions  as  are  found  in  the  opinion  touching  that  point  cer- 
tainly do  not  indicate  to  my  mind  that  if  involved  and  passed  upon  it 
would  have  been  decided  adversel}-  to  the  views  here  expressed. 

Lastly,  it  is  urged  that  there  will  be  great  practical  difficulty  in 
making  an  apportionment  of  property  for  the  purposes  of  valuation  and 
taxation  upon  the  lines  suggested,  and  the  learned  counsel  for  the  re- 
spondent has  suggested  many  difficulties  and  absurdities  claimed  to  be 
incidental  to  such  course  of  procedure.  Most  of  them  certainly  will 
not  arise  in  this  case  and  they  probably  never  will  in  any  other.  Of 
course  an  appraisal  based  upon  an  apportionment  of  the  entire  prop- 
erty of  the  consolidated  company  between  the  New  York  and  Massachu- 
setts corporations  may  be  made  a  source  of  much  labor  and  expense  if 
tlie  parties  so  desire.  Possibly  it  might  be  carried  to  the  extent  of  a  de- 
tailed inventory  and  valuation  of  innumerable  pieces  of  propert\'.  Upon 
the  other  hand,  an  apportionment  based  upon  trackage  or  figures  drawn 
from  the  books  or  balance  sheets  of  the  company  may  doubtless  be 
easily  reached  which  will  be  substantially  correct,  and  an_y  inaccuracies 
of  which  when  reflected  in  a  tax  of  one  per  cent  upon  426  shares  of 
stock  will  be  inconsequential. 

The  order  of  the  Appellate  Division  and  of  the  Surrogate's  Court  of 
the  county  of  New  York  should  be  reversed,  with  costs,  and  the  pro- 
ceedings remitted  to  said  Surrogate's  Court  for  a  reappraisal  of  the 
stock  in  question  in  accordance  with  the  views  herein  expressed. 

CuLLEN,  Ch.  J.,  Gray,  O'Briex,  and  Edward  T.  Bartlett,  JJ., 
concur ;  "Werner  and  Chase,  JJ.,  dissent. 

Order  reversed,  etc. 

9 


130  THE    BELGENLAND.  [CHAP.  HI. 


CHAPTER  III. 
JURISDICTION   OF  COURTS. 


SECTION   I. 

JURISDICTION    IX    REM. 


THE   BELGENLAND. 

Supreme  Court  of  the  United  States.     1885. 

[Reported  1 14  United  States,  355.] 

Bradley,  J.^  This  case  grew  out  of  a  collision  which  took  place  on 
the  high  seas  between  the  Norwegian  barque  "  Luna  "  and  the  Belgian 
steamship  "  Belgenland,"  by  which  the  former  was  run  down  and  sunk. 
Part  of  the  crew  of  the  "  Luna,"  including  the  master,  were  rescued  by 
the  ''  Belgenland  "  and  brought  to  Pliiladelphia.  The  master  immedi- 
ately libelled  tlie  steamship  on  behalf  of  the  owners  of  the  "  Luna"  and 
her  cargo,  and  her  surviving  crew,  in  a  cause  civil  and  maritime.  .  .  . 
The  District  Court  decided  in  favor  of  the  libellant,  and  rendered  a 
decree  for  the  various  parties  interested  to  the  aggregate  amount  of 
$50,278.23.     An  appeal  was  taken  to  the  Circuit  Court.  .  .  . 

A  decree  was  thereupon  entered,  affirming  the  decree  of  the  District 
Court.  ...  A  reargument  was  had  on  the  question  of  jurisdiction,  and  the 
court  held  and  decided  that  the  Admiralty  Courts  of  the  United  States 
have  jurisdiction  of  collisions  occurring  on  the  high  seas  between  vessels 
owned  by  foreigners  of  different  nationalities  ;  and  overruled  the  plea 
to  the  jurisdiction.  9  Fed.  Rep.  576.  The  case  was  brought  before  this 
court  on  appeal  from  the  decree  of  the  Circuit  Court.  See  also  108 
U.  S.  153. 

The  first  question  to  be  considered  is  that  of  the  jurisdiction  of  the 
District  Court  to  hear  and  determine  the  cause. 

It  is  unneces.sary  here,  and  would  be  out  of  place,  to  examine  the 
question  wliich  has  so  often  engaged  the  attention  of  the  common  law 
courts,  whether,  and  in  what  cases,  the  courts  of  one  country  should 
take  cognizance  of  controversies  arising  in  a  foreign  countr}',  or  in 
places  outside  of  the  jurisdiction  of  any  country.     It  is  verj'  fully  dis' 

^  Only  so  much  of  the  opinion  as  discusses  the  question  of  jurisdiction  is  given. 
—  Ed. 


SECT.  1.]  THE    BELGENLAND.  131 

cussed  in  Mostyn  v.  Fabrigas,  Cowp.  161,  and  the  notes  thereto  in  1 
Smith's  Leading  Cases,  340  ;  and  an  instructive  analysis  of  the  law 
will  be  found  in  the  elaborate  arguments  of  counsel  in  the  case  of 
the  San  Francisco  Vigilant  Committee,  Malony  v.  Dows,  8  Abbott  Pr. 
316,  argued  before  Judge  Daly  in  New  York,  1859.  We  shall  content 
ourselves  with  inquiring  what  rule  is  followed  by  Courts  of  Admiralty 
in  dealing  with  maritime  causes  arising  between  foreigners  and  others 
on  the  high  seas. 

This  question  is  not  a  new  one  in  these  courts.  Sir  William  Scott 
had  occasion  to  pass  upon  it  in  1799.  An  American  ship  was  taken  by 
the  French  on  a  voyage  from  Philadelphia  to  London,  and  afterwards 
rescued  by  her  crew,  carried  to  England,  and  libelled  for  salvage  ;  and 
the  court  entertained  jurisdiction.  The  crew,  however,  though  engaged 
in  the  American  ship,  were  British  born  subjects,  and  weight  was  given 
to  this  circumstance  in  the  disposition  of  the  case.  The  judge,  however, 
made  the  following  remarks  :  "  But  it  is  asked,  if  they  were  American 
seamen  would  this  court  hold  plea  of  their  demands?  It  may  be  time 
enough  to  answer  this  question  whenever  the  fact  occurs.  In  the  mean- 
time, I  will  sa}'  without  scruple  that  I  can  see  no  inconvenience  that 
would  arise  if  a  British  court  of  justice  was  to  hold  plea  in  such  a  case  ; 
or  conversely,  if  American  courts  were  to  hold  pleas  of  this  nature  re- 
specting the  merits  of  British  seamen  on  such  occasions.  For  salvage 
is  a  question  of  jus  gentium,  and  materially  different  from  the  question 
of  a  mariner's  contract,  which  is  a  creature  of  the  particular  institutions 
of  the  country',  to  be  applied  and  construed  and  explained  by  its  own 
particular  rules.  There  might  be  good  reason,  therefore,  for  this  court 
to  decline  to  interfere  in  such  cases,  and  to  remit  them  to  their  own  do- 
mestic forum  ;  but  this  is  a  general  claim,  upon  the  general  ground  of 
quantwn  meruit^  to  be  governed  b}-  a  sound  discretion,  acting  on  gen- 
eral principles  ;  and  I  can  see  no  reason  why  one  country'  should  be 
afraid  to  trust  to  the  equity  of  the  courts  of  another  on  such  a  question, 
of  such  a  nature,  so  to  be  determined."  The  Two  Friends,  1  Ch.  Rob. 
271,  278. 

The  law  has  become  settled  very  much  in  accord  with  these  views. 
That  was  a  case  of  salvage ;  but  the  same  principles  would  seem  to  ap- 
ph'  to  the  case  of  destro3'ing  or  injuring  a  ship,  as  to  that  of  saving  it. 
Both,  when  acted  on  the  high  seas,  between  persons  of  different  nation- 
alities, come  within  the  domain  of  the  general  law  of  nations,  or  com- 
munis juris,  and  are  prima  facie  proper  subjects  of  inquirj'  in  any 
Court  of  Admiralty  which  first  obtains  jurisdiction  of  the  rescued  or 
offending  ship  at  the  solicitation  in  justice  of  the  meritorious,  or  injured, 
parties. 

The  same  question  of  jurisdiction  arose  in  another  salvage  case  which 
came  before  this  court  in  1804,  Mason  v.  The  Blaireau,  2  Cranch, 
240.  There  a  French  ship  was  saved  by  a  British  ship,  and  brought 
into  a  port  of  the  United  States  ;  and  the  question  of  jurisdiction  was 
raised  by  Mr.  Martin,  of  Maryland,  who,  however,  did  not  press  the 


]^32  THE   BELGENLAND.  [CHAP.   III. 

point,  and  referred  to  the  observations  of  Sir  William  Scolt  in  The 
Two  Friends.  Chief  Justice  Marshall,  speaking  for  the  court,  disposed 
of  the  question  as  follows:  "A  doubt  has  been  suggested,"  said  he, 
"respecting  the  jurisdiction  of  the  court,  and  upon  a  reference  to  the 
authorities,  the  point  does  not  appear  to  have  been  ever  settled.  These 
doubts  seem  rather  founded  on  the  idea  that  upon  principles  of  general 
polic}',  this  court  ought  not  to  take  cognizance  of  a  case  entirely  be- 
tween foreigners,  than  from  any  positive  incapacity  to  do  so.  On 
weighing  the  considerations  drawn  from  pubUc  convenience,  those  in 
favor  of  the  jurisdiction  appear  much  to  overbalance  those  against  it, 
and  it  is  the  opinion  of  this  court,  that,  whatever  doubts  may  exist  in  a 
case  where  the  jurisdiction  may  be  objected  to,  there  ought  to  be  none 
where  the  parties  assent  to  it."  In  that  case,  the  objection  had  not 
been  taken  in  the  first  instance,  as  it  was  in  the  present.  But  we  do 
not  see  how  that  circumstance  can  affect  the  jurisdiction  of  the  court, 
however  much  it  ma}'  influence  its  discretion  in  taking  jurisdiction. 

For  circumstances  often  exist  which  render  it  inexpedient  for  the 
court  to  take  jurisdiction  of  controversies  between  foreigners  in  cases 
not  arising  in  the  country  of  the  forum  ;  as,  where  they  are  governed 
b}'  the  laws  of  the  country  to  which  the  parties  belong,  and  there  is 
no  difficult}'  in  a  resort  to  its  courts ;  or  where  they  have  agreed  to 
resort  to  no  other  tribunals.  The  cases  of  foreign  seamen  suing  for 
wages,  or  because  of  ill  treatment,  are  often  in  this  category  ;  and  the 
consent  of  their  consul,  or  minister,  is  frequently  required  before  the 
court  will  proceed  to  entertain  jurisdiction  ;  not  on  the  ground  that  it 
has  not  jurisdiction,  but  that,  from  motives  of  convenience  or  interna- 
tional comity,  it  will  use  its  discretion  whether  to  exercise  jurisdiction 
or  not ;  and  where  the  voyage  is  ended,  or  the  seamen  liave  been  dis- 
missed or  treated  with  great  cruelty,  it  will  entertain  jurisdiction  even 
against  the  protest  of  the  consul.  This  branch  of  the  subject  will  be 
found  discussed  in  the  following  cases:  The  Catherina,  1  Pet.  Adm. 
104  ;  The  Forsoket,  1  Pet.  Adm.  197;  The  St.  Oloff,  2  Pet.  Adm.  428; 
The  Golubchick.  1  W.  Rob.  143;  The  Nina,  L.  R.  2  Adm.  and  Eccl.  44  ; 
s.  c.  on  appeal,  L.  R.  2  Priv.  Co.  38;  The  Leon  XIII.,  8  Prob.  Div.  121  ; 
The  Havana,  1  Sprague,  402 ;  The  Becherdass  Ambaidass,  1  Lowell, 
569  ;  The  Pawasliick,  2  Lowell.  142. 

Of  course,  if  any  treaty  stipulations  exist  between  the  United  States 
and  the  country  to  which  a  foreign  ship  l)elongs,  with  regard  to  the 
right  of  the  consul  of  that  country  to  adjudge  controversies  arising  be-> 
tween  the  master  and  crew,  or  other  matters  occurring  on  the  ship 
exclusively  subject  to  the  foreign  law,  such  stipulations  should  be  fairly 
and  faitlifully  observed.  Tlie  Elwiu  Krcplin,  9  lllatchford,  438,  revers- 
ing s.  c.  4  r>en.  413  ;  see  s.  c.  on  application  for  mandamus,  Tlx  parte 
Newman,  14  Wall.  152.  ^lany  public  engagements  of  this  kind  have 
been  entered  into  between  our  government  and  foreigh  States.  See 
Treaties  and  Conventions,  Rev.  ed.,  1873,  Index,  1238. 

In  the  alisence  of  such  treat}'  stipulations,  however,  the  case  of  for- 


SECT.    I.]  THE    BELGENLAND.  133 

eign  seamen  is  undoubtedl}'  a  special  one,  when  the}'  sue  for  wages 
under  a  contract  which  is  generall}-  strict  in  its  character,  and  framed 
according  to  the  laws  of  the  country  to  which  the  ship  belongs  ;  framed 
also  with  a  view  to  secure,  in  accordance  with  those  laws,  the  rights  and 
interests  of  the  ship-owners  as  well  as  those  of  master  and  crew,  as  well 
when  the  ship  is  abroad  as  when  she  is  at  home.  Nor  is  this  special 
character  of  the  case  entirely  absent  when  foreign  seamen  sue  the  mas- 
ter of  their  ship  for  ill-treatment.  On  general  principles  of  comity, 
Admiralty  Courts  of  other  countries  will  not  interfere  between  the  par- 
ties in  such  cases  unless  there  is  special  reason  for  doing  so,  and  will 
require  the  foreign  consul  to  be  notified,  and,  though  not  absolutely 
bound  by,  will  always  pay  due  respect  to,  his  wishes  as  to  taking 
jurisdiction. 

Not  alone,  however,  in  cases  of  complaints  made  by  foreign  seamen,  but 
in  other  cases  also,  where  the  subjects  of  a  particular  nation  invoke  the 
aid  of  our  tribunals  to  adjudicate  between  them  and  their  fellow  subjects, 
as  to  matters  of  contract  or  tort  solely  affecting  themselves  and  deter- 
minable by  their  own  laws,  such  tribunals  will  exercise  their  discretion 
whether  to  take  cognizance  of  such  matters  or  not.  A  salvage  case  of 
this  kind  came  before  the  United  States  District  Court  of  New  York  in 
1848.  The  master  and  crew  of  a  British  ship  found  another  British  ship 
near  the  English  coast  apparently  abandoned  (though  another  vessel 
was  in  sight),  and  took  off  a  portion  of  her  cargo,  brought  it  to  New 
York,  and  libelled  it  for  salvage.  The  British  consul  and  some  owners 
of  the  cargo  intervened  and  protested  against  the  jurisdiction,  and  Judge 
Betts  discharged  the  case,  delivered  the  property  to  the  owners  upon 
security  given,  and  left  the  salvors  to  pursue  their  remedy  in  the  Eng- 
lish courts.    One  Hundred  and  Ninety-four  Shawls,  1  Abbott  Adm.  317. 

So  in  a  question  of  ownership  of  a  foreign  vessel,  agitated  between 
the  subjects  of  the  nation  to  which  the  vessel  belonged,  the  English 
Admiralty,  upon  objection  being  made  to  its  jurisdiction,  refused  to 
interfere,  the  consul  of  such  foreign  nation  having  declined  to  give  his 
consent  to  the  proceedings.  The  Agincourt,  2  Prob.  Div.  239.  But  in 
another  case,  where  there  had  been  an  adjudication  of  the  ownership 
under  a  mortgage  in  the  foreign  country,  and  the  consul  of  that  country 
requested  the  English  court  to  take  jurisdiction  of  the  case  upon  a  libel 
filed  by  the  mortgagee,  whom  the  owners  had  dispossessed,  the  court  took 
jurisdiction  accordingly.     The  Evangelistria.  2  Prob.  Div.  241,  note. 

But,  although  the  courts  will  use  a  discretion  about  assuming  juris- 
diction of  controversies  between  foreigners  in  cases  arising  beyond  the 
territorial  jurisdiction  of  the  country  to  which  the  courts  belong,  yet 
where  such  controversies  are  communis  juris,  that  is,  where  they  arise 
under  the  common  law  of  nations,  special  grounds  should  appear  to 
induce  the  court  to  deny  its  aid  to  a  foreign  suitor  when  it  has  jurisdic- 
tion of  the  ship  or  party  charged.  The  existence  of  jurisdiction  in  all 
such  cases  is  beyond  dispute  ;  the  only  question  will  be,  whether  it  is 
expedient  to  exercise  it.     See  2  Parsons  Ship,  and  Adm.  226,  and  cases 


;[34  THE    BELGENLAND.  [CHAP.   IIL 

cited  in  notes.  In  the  case  of  The  Jerusalem,  2  Gall.  191,  decided  by- 
Mr.  Justice  Story,  jurisdiction  was  exercised  in  the  case  of  a  bottomry 
bond,  although  the  contract  was  made  between  subjects  of  the  Sublime 
Porte,  and  it  did  not  appear  tliat  it  was  intended  that  the  vessel  should 
come  to  the  United  States.  In  this  case  Justice  Story  examined  the 
subject  very  fully,  and  came  to  the  conclusion  that,  wherever  there  is  a 
maritime  lien  on  the  ship,  an  Admiralty  Court  can  take  jurisdiction  on 
the  principle  of  the  civil  law,  that  in  proceedings  in  rem  the  proper 
forum  is  the  locus  rei  sitCB.  He  added  :  "  Wilh  reference,  therefore, 
to  what  may  be  deemed  the  public  law  of  Europe,  a  proceeding  iii  rem 
may  well  be  maintained  in  our  courts  where  the  property  of  a  foreigner 
is  within  our  jurisdiction.  Nor  am  I  able  to  perceive  how  the  exercise 
of  such  judicial  authority  clashes  with  any  principles  of  pubHc  policy." 
That,  as  we  have  seen,  was  a  case  of  bottomry,  and  Justice  Story,  in 
answer  to  the  objection  that  tlie  contract  might  have  been  entered  into 
in  reference  to  the  foreign  law,  after  showing  that  such  law  might  be 
proven  here,  said  :  ''In  respect  to  maritime  contracts,  there  is  still  less 
reason  to  decline  the  jurisdiction,  for  in  almost  all  civilized  countries 
these  are  in  general  substantially  governed  by  the  same  rules." 

Justice  Story's  decision  in  this  case  was  referred  to  by  Dr.  Lushing- 
ton  with  strong  approbation  in  the  case  of  The  Golubchick,  1  W.  Rob. 
143,  decided  in  1840,  and  was  adopted  as  authority  for  his  taking  juris- 
diction in  that  case. 

In  1839,  a  case  of  collision  on  the  high  seas  between  two  foreign  ships 
of  different  countries  (the  very  case  now  under  consideration)  came  be- 
fore the  English  Admiralty.'  The  Johann  Friederich,  1  W.  Rob.  35.  A 
Danish  ship  was  sunk  by  a  Bremen  ship,  and  on  the  latter  being  libelled, 
the  respondents  entered  a  protest  against  tlie  jurisdiction  of  the  court. 
But  jurisdiction  was  retained  liy  Dr.  Lushington,  who,  amongst  other 
things,  remarked:  "An  alien  friend  is  entitled  to  sue  [in  our  courts] 
on  the  same  footing  as  a  British  born  subject,  and  if  the  foreigner  in 
this  case  had  been  resident  here,  and  the  cause  of  action  had  originated 
infra  corpus  comitcdns,  no  objection  could  have  been  taken."  Refer- 
ence being  made  to  the  observations  of  Lord  Stowell  in  cases  of  sea- 
men's wages,  the  judge  said:  "All  questions  of  collision  are  questions 
communis  juris  ^  but  in  case  of  mariners'  wages,  whoever  engages  vol- 
untarily to  serve  on  board  a  foreign  ship,  necessarily  undertakes  to  be 
bound  by  the  law  of  tlie  country  to  which  such  ship  belongs,  and  the 
legality  of  his  claim  must  be  tried  by  such  law.  One  of  the  most  im- 
portant distinctions,  therefore,  respecting  cases  where  both  parties  are 
foreigners  is,  whether  the  case  be  communis  juris  or  not.  ...  If  these 
parties  must  wait  until  the  vessel  that  has  done  the  injury  returned  to 
its  own  country,  their  remedy  might  be  altogether  lost,  for  she  might 
never  return,  and,  if  she  did,  there  is  no  part  of  the  world  to  which  they 
might  not  be  sent  for  their  redress." 

In  the  subsequent  case  of  The  Griefswald,  1  Swabey,  430,  decided 
by  the  same  judge  in  1859,  which  arose  out  of  a  collision  between  a 


SECT.   I.]  THE    BELGENLAND.  135 

British  barque  and  a  Persian  ship  in  the  Dardanelles,  Dr.  Lushington 
said:  '"In  eases  of  collision,  it  has  been  the  practice  of  this  country, 
and,  so  far  as  I  know,  of  the  European  States  and  of  the  United  States 
of  America,  to  allow  a  party  alleging  grievance  by  a  collision  to  proceed 
in  rem  against  the  ship  wherever  found,  and  this  practice,  it  is  manifest, 
is  most  conducive  to  justice,  because  in  very  many  cases  a  remedy  m 
personam  would  be  impracticable." 

The  subject  has  frequently  been  before  our  own  Admiralty  Courts  of 
original  jurisdiction,  and  there  has  been  but  one  opinion  expressed, 
namely,  that  they  have  jurisdiction  in  such  cases,  and  that  they  will 
exercise  it  unless  special  circumstances  exist  to  show  that  justice  would 
be  better  subserved  by  declining  it.  It  was  exercised  in  two  cases  of 
collision  coming  before  Mr.  Justice  Blatchford,  while  district  judge  of 
the  Southern  District  of  New  York,  The  Jupiter,  1  Ben.  536,  and  The 
Steamship  Russia,  3  Ben.  471.  In  the  former  case  the  law  was  taken 
very  much  for  granted  ;  in  the  latter  it  was  tersely  and  accurately  ex- 
pounded, with  a  reference  to  the  principal  authorities.  Other  cases 
might  be  referred  to,  but  it  is  unnecessary  to  cite  them.  The  general 
doctrine  on  the  suliject  is  recognized  in  the  case  of  The  Maggie  Ham- 
mond, 9  Wall.  435,  457,  and  is  accurately  stated  by  Chief  Justice  Taney 
in  his  dissenting  opinion  in  Taylor  v.  Carryl,  20  How.  583,  Gil. 

As  the  assumption  of  jurisdiction  in  such  cases  depends  so  largely  on 
the  discretion  of  the  court  of  first  instance,  it  is  necessary  to  inquire 
how  far  an  appellate  court  should  undertake  to  review  its  action.  We 
are  not  without  authority  of  a  very  higli  character  on  this  point.  In  a 
quite  recent  case  in  England,  that  of  The  Leon  XIII.,  8  Prob.  Div.  121, 
the  subject  was  discussed  in  the  Court  of  Appeal.  That  was  the  case 
of  a  Spanish  vessel  libelled  for  the  wages  of  certain  British  seamen  who 
had  shipped  on  board  of  her,  and  the  Spanish  consul  at  Liverpool  pro- 
tested against  the  jurisdiction  of  the  Admiralty  Court  on  the  ground 
that  the  shipping  articles  were  a  Spanish  contract,  to  be  governed  by 
Spanish  law,  and  any  controversy  arising  thereon  could  only  be  settled 
before  a  Spanish  court,  or  consul.  Sir  Robert  Phillimore  held  that  the 
seamen  were  to  be  regarded  for  that  case  as  Spanish  subjects,  and, 
under  the  circumstances,  he  considered  the  protest  a  proper  one  and 
dismissed  the  suit.  The  Court  of  Appeal  held  that  the  judge  below  was 
right  in  regarding  the  libellants  as  Spanish  subjects  ;  and  on  the  ques- 
tion of  reviewing  his  exercise  of  discretion  in  refusing  to  take  jurisdiction 
of  the  case,  Brett,  M.  R.,  said  :  "It  is  then  said  that  the  learned  judge 
has  exercised  his  discretion  wrongly.  What  then  is  the  rule  as  regards 
this  point  in  the  Court  of  Appeal  ?  The  plaintiffs  must  show  that  the 
judge  has  exercised  his  discretion  on  wrong  principles,  or  that  he 
has  acted  so  absolutely  differently  from  the  view  which  the  Court  of 
Appeal  holds,  that  they  are  justified  in  saying  he  has  exercised  it 
wrongly.  I  cannot  see  that  any  wrong  principle  has  been  acted  on  by 
the  learned  judge,  or  anything  done  in  the  exercise  of  his  discretion  so 
unjust  or  unfair  as  to  entitle  us  to  overrule  his  discretion." 


236  AENDT   V.    GRIGGS.  [CHaP.    III. 

This  seems  to  us  to  be  a  very  sound  view  of  the  subject ;  and  acting 
on  this  principle,  we  certainly  see  nothing  in  the  course  taken  by  the 
District  Court  in  assuming  jurisdiction  of  the  present  case,  which  calls 
for  animadversion.  Indeed,  where  the  parties  are  not  only  foreigners, 
but  belong  to  different  nations,  and  the  injury  or  salvage  service  takes 
place  on  the  higli  seas,  there  seems  to  be  no  good  reason  why  the  party 
injured,  or  doing  the  service,  should  ever  be  denied  justice  in  our  courts. 
Neither  party  has  any  peculiar  claim  to  be  judged  by  the  municipal  law 
of  his  own  country,  since  the  case  is  pre-eminently  one  communis  Juris, 
and  can  generally  be  more  impartially  and  satisfactorily  adjudicated  by 
the  court  of  a  third  nation  having  jurisdiction  of  the  res  or  parties,  than 
it  could  be  by  the  courts  of  either  of  the  nations  to  which  the  litigants 
belong.  As  Judge  Deady  very  justly  said,  in  a  case  before  him  in  the 
district  of  Oregon  :  "The  parties  cannot  be  remitted  to  a  home  forum, 
for,  being  subjects  of  different  governments,  there  is  no  such  tribunal. 
The  forum  whicli  is  common  to  them  both  by  the  Ji/s  gentium  is  any 
court  of  admiralty  within  the  reach  of  whose  process  they  may  both  be 
found."     Bernhard  v.  Greene,  3  Sawyer,  230,  235. 


ARNDT  V.  GRIGGS. 
Supreme  Court  of  the  United  States.     1890. 

[Reported  134  United  States,  316.] 

Brewer,  J.  The  statutes  of  Nebraska  contain  these  sections  :  Sec.  57, 
chap.  73,  Compiled  Statutes  1885.  p.  483  :  ''  An  action  maybe  brought 
and  prosecuted  to  final  decree,  judgment,  or  order,  by  any  person  or  per- 
sons, whether  in  actual  possession  or  not,  claiming  title  to  real  estate, 
against  any  person  or  persons,  who  claim  an  adverse  estate  or  interest 
therein,  for  the  purpose  of  determining  such  estate  or  interest,  and 
quieting  the  title  to  said  real  estate.'*  Sec.  58:  "  All  such  pleadings 
and  proofs  and  subsequent  proceedings  shall  be  had  in  such  action  now 
pending  or  hereafter  brought,  as  may  be  necessary  to  fully  settle  or 
determine  the  question  of  title  between  the  parties  to  said  real  estate, 
and  to  decree  the  title  to  the  same,  or  any  part  thereof,  to  the  party 
entitled  thereto  ;  and  the  court  may  issue  the  appropriate  order  to 
carry  such  decree,  judgment,  or  order  into  effect."  Sec.  77,  Code  of 
Civil  Procedure,  Compiled  Statutes  1885,  p.  G37 :  "  Service  may  be 
made  by  publication  in  either  of  the  following  cases  :  "  Fourth.  In 
actions  which  relate  to,  or  the  subject  of  which  is,  real  or  personal 
property  in  this  State,  where  any  <lefendant  has  or  claims  a  lien  or 
interest,  actual  or  contingent,  therein,  or  tlie  relief  demanded  consists 
wholly  or  partially  in  excluding  him  from  any  interest  therein,  and 
such  defendant  is  a  non-resident  of  the  State  or  a  foreign  corporation." 
Sec.  78  of  the  Code:  "Before  service  can  be  made  by  publication, 


SECT.    I.]  AKNDT   V.   GRIGGS.  137 

an  affidavit  must  be  filed  that  service  of  a  summons  cannot  be  made 
within  this  State,  on  the  defendant  or  defendants,  to  be  served  by  pub- 
lication, and  that  the  case  is  one  of  those  mentioned  in  the  preceding 
section.  When  such  affidavit  is  filed  the  party  may  proceed  to  make 
service  by  publication."  Sec.  82  of  the  Code  :  "  A  party  against  whom 
a  judgment  or  decree  has  been  rendered  without  other  service  than  by 
publication  in  a  newspaper,  may,  at  any  time  within  five  years  after 
the  date  of  the  judgment  or  order,  have  the  same  opened  and  be  let  in 
to  defend  ;  ...  but  the  title  to  any  property,  the  subject  of  the  judg- 
ment or  order  sought  to  be  opened,  which  by  it,  or  in  consequence  of 
it,  shall  have  passed  to  a  purchaser  in  good  faith,  shall  not  be  afl'ected 
by  any  proceedings  under  this  section,  nor  shall  they  affect  the  title  to 
any  property  sold  before  judgment  under  an  attachment."  Sec.  429  b. 
of  the  Code  :  ''  When  any  judgment  or  decree  shall  be  rendered  for  a 
conveyance,  release,  or  acquittance,  in  any  court  of  this  State,  and  the 
party  or  parties  against  whom  the  judgment  or  decree  shall  be  rendered 
do  not  comply  therewith  within  the  time  mentioned  in  said  judgment 
or  decree,  such  judgment  or  decree  shall  have  the  same  operation  and 
effect,  and  be  as  available,  as  if  the  conveyance,  release,  or  acquittance 
had  been  executed  conformable  to  such  judgment  or  decree." 

Under  these  sections,  in  March,  1882,  Charles  L.  FUnt  filed  his  peti- 
tion in  the  proper  court  against  Michael  Hurley  and  another,  alleging 
that  he  was  the  owner  and  in  possession  of  the  tracts  of  land  in  con- 
troversy in  this  suit ;  that  he  held  title  thereto  by  virtue  of  certain  tax 
deeds,  which  were  described;  that  the  defendants  claimed  to  have 
some  title,  estate,  interest  in,  or  claim  upon  the  lands  by  patent  from 
the  United  States,  or  deed  from  the  patentee,  but  that  whatever  title, 
estate,  or  claim  they  had,  or  pretended  to  have,  was  divested  by  the 
said  tax  deeds,  and  was  unjust,  inequitable,  and  a  cloud  upon  plain- 
tiff's title  ;  and  that  this  suit  was  brought  for  the  purpose  of  quieting 
his  title.  The  defendants  were  brought  in  by  publication,  a  decree  was 
entered  in  favor  of  Flint  quieting  his  title,  and  it  is  conceded  that  all 
the  proceedings  were  in  full  conformity  with  the  statutory  provisions 
above  quoted. 

The  present  suit  is  one  in  ejectment,  between  grantees  of  the  respec- 
tive parties  to  the  foregoing  proceedings  to  quiet  title  ;  and  the  ques- 
tion before  us,  arising  upon  a  certificate  of  division  of  opinion  between 
the  trial  judges,  is  whether  the  decree  in  such  proceedings  to  quiet  title, 
rendered  in  accordance  with  the  provisions  of  the  Nebraska  statute, 
upon  service  duly  authorized  by  them,  was  valid  and  operated  to  quiet 
the  title  in  the  plaintiff  therein.  In  other  words,  has  a  State  the 
power  to  provide  by  statute  that  the  title  to  real  estate  within  its  limits 
shall  be  settled  and  determined  by  a  suit  in  which  the  defendant,  being 
a  non-resident,  is  brought  into  court  only  by  publication?  The  Supreme 
Court  of  Nebraska  has  answered  this  question  in  the  affirmative. 
Watson  V.  Ulbrich,  18  Neb.  189  — in  which  the  court  says:  "The 
principal  question  to  be  determined  is  whether  or  not  the  decree  in 


238  AENDT   V.    GRIGGS.  [CHAP.    III. 

favor  of  Gra}',  rendered  upon  constructive  service,  is  valid  until  set 
aside.  No  objection  is  made  to  the  service,  or  an}'  proceedings  con- 
nected with  it.  The  real  estate  in  controversy  was  within  the  jurisdic- 
tion of  the  District  Court,  and  that  court  had  authority,  in  a  proper 
case,  to  render  the  decree  confirming  the  title  of  Gra}'.  In  Castriquc 
V.  Imrie,  L.  R.  4  H.  L.  -414,  429,  Mr.  Justice  Blackburn  says:  '  We 
think  the  inquirj-  is,  first,  whether  the  subject-matter  was  so  situated 
as  to  be  within  the  lawful  control  of  the  State  under  the  authority  of 
which  the  court  sits  ;  and,  secondly,  whether  the  sovereign  authority  of 
that  State  has  conferred  on  the  court  jurisdiction  to  decide  as  to  the 
disposition  of  the  thing,  and  the  court  has  acted  within  its  jurisdiction. 
If  these  conditions  are  fulfilled,  the  adjudication  is  conclusive  against 
all  the  world.'  The  court,  therefore,  in  this  case,  having  authority  to 
render  the  decree,  and  jurisdiction  of  the  subject-matter,  its  decree  is 
conclusive  upon  the  property-  until  vacated  under  the  statutes  or  set 
aside." 

Section  57,  enlarging  as  it  does  the  class  of  cases  in  which  relief  was 
formerly  afforded  by  a  court  of  equit}'  in  quieting  the  title  to  real 
propert}',  has  been  sustained  by  this  court,  and  held  applicable  to  suits 
in  the  Federal  court.  Holland  v.  Challen,  110  U.  S.  15.  But  it  is  ear- 
nesth-  contended  that  no  decree  in  such  a  case,  rendered  on  service  b}' 
publication  onl}-,  is  valid  or  can  be  recognized  in  the  Federal  courts. 
And  Hart  v.  Sansom,  110  U.  S.  151,  is  relied  on  as  authority  for  this 
proposition.  The  propositions  are,  that  an  action  to  quiet  title  is  a 
suit  in  equity  ;  that  equity  acts  upon  the  person  ;  and  that  the  person 
is  not  brought  into  court  by  service  b}-  publication  alone. 

"While  these  propositions  are  doubtless  correct  as  statements  of  the 
general  rules  respecting  bills  to  quiet  title,  and  proceedings  in  courts  of 
equity,  they  are  not  applicable  or  controlling  here.  The  question  is 
not  what  a  court  of  equity,  In-  virtue  of  its  general  powers  and  in  the 
absence  of  a  statute,  might  do,  but  it  is,  wliat  jurisdiction  has  a  State 
over  titles  to  real  estate  within  its  limits,  and  what  jurisdiction  may  it 
give  by  statute  to  its  own  courts,  to  determine  the  validit}'  and  extent 
of  the  claims  of  non-residents  to  such  real  estate?  If  a  State  has  no 
power  to  bring  a  non-resident  into  its  courts  for  an}'  purposes  b}'  pub- 
lication, it  is  impotent  to  perfect  the  titles  of  real  estate  within  its  limits 
held  by  its  own  citizens  ;  and  a  cloud  cast  upon  such  title  by  a  claim  of 
a  non-resident  will  remain  for  all  time  a  cloud,  unless  such  non-resident 
shall  voluntarily  come  into  its  courts  for  the  purpose  of  having  it  adju- 
dicated. lUit  no  such  imperfections  attend  the  sovcreignt}'  of  the  State. 
It  has  control  over  property  within  its  limits  ;  and  the  condition  of 
ownership  of  real  estate  therein,  whether  the  owner  be  stranger  or  citi- 
zen, is  subjection  to  its  rules  concerning  the  holding,  the  transfer,  lia- 
bility to  obligations,  private  or  public,  and  the  modes  of  establisiiing 
titles  thereto.  It  cannot  bring  the  person  of  a  non-resident  within  its 
limits  —  its  process  goes  not  out  beyond  its  borders  —  but  it  mav  deter- 
mine the  extent  of  his  title  to  real  estate  within  its  limits ;  and  for  the 


SECT.    I.]  ARNDT   V.    GRIGGS.  139 

purpose  of  such  determination  may  provide  anj-  reasonable  methods  of 
imparting  notice.  The  well-being  of  ever}'  community  requires  that  the 
title  of  real  estate  therein  shall  be  secure,  and  that  there  be  convenient 
and  certain  methods  of  determining  an}'  unsettled  questions  respecting  it. 
The  duty  of  accomplishing  this  is  local  in  its  nature  ;  it  is  not  a  matter  of 
national  concern  or  vested  in  the  general  government ;  it  remains  with 
the  State  ;  and  as  this  duty  is  one  of  the  State,  the  manner  of  discharg- 
ing it  must  be  determined  by  the  State,  and  no  proceeding  which  it 
provides  can  be  declared  invalid,  unless  in  conflict  with  some  special 
inhibitions  of  the  Constitution,  or  against  natural  justice.  So  it  has 
been  held  repeatedly  that  the  procedure  established  b}'  the  State,  in 
this  respect,  is  binding  upon  the  Federal  courts.  In  United  States  v. 
Fox,  94  U.  S.  315,  320,  it  was  said  :  "  The  power  of  the  State  to  regu- 
late the  tenure  of  real  property  within  her  limits,  and  the  modes  of  its 
acquisition  and  transfer,  and  the  rules  of  its  descent,  and  the  extent  to 
which  a  testamentary  disposition  of  it  may  be  exercised  b}-  its  owners 
is  undoubted.  It  is  an  established  principle  of  law,  everj'where  recog- 
nized, arising  from  the  necessity  of  the  case,  that  the  disposition  of 
immovable  propert}',  whether  b}'  deed,  descent,  or  any  other  mode,  is 
exclusively  subject  to  the  government  within  whose  jurisdiction  the 
property  is  situated."  See  also  McCormick  v.  SuUivant,  10  "Wheat. 
192,  202  ;  Beauregard  v.  New  Orleans,  18  How.  497;  Suydam  v.  Wil- 
Uarason,  24  How.  427  ;  Christian  Union  v.  Yount,  101  U.  S.  352  ; 
Lathrop  v.  Bank,  8  Dana,  114. 

Passing  to  an  examination  of  the  decisions  on  the  precise  question  it 
may  safely  be  affirmed  that  the  general,  if  not  the  uniform,  ruling  of 
State  courts  has  been  in  favor  of  the  power  of  the  State  to  thus  quiet 
the  title  to  real  estate  within  its  limits.  In  addition  to  the  case  from 
Nebraska,  heretofore  cited,  and  which  onl}'  followed  prior  rulings  in 
that  State,  —  Scudder  v.  Sargent,  15  Neb.  102;  Keene  v.  Sallen- 
bach.  15  Neb.  200  —  reference  may  be  had  to  a  few  cases.  In 
Cloyd  V.  Trotter,  118  111.  391,  the  Supreme  Court  of  Illinois  held  that 
under  the  statutes  of  that  State  the  court  could  acquire  jurisdiction 
to  quiet  title  by  constructive  service  against  non-resident  defendants. 
A  similar  ruling  as  to  jurisdiction  acquired  in  a  suit  to  set  aside  a  con- 
veyance as  fraudulent  as  to  creditors  was  affirmed  in  Adams  v.  Cowles, 
95  Mo.  501.  In  Wunstel  v.  Landry,  39  La.  Ann.  312,  it  was  held 
that  a  non-resident  part}'  could  be  brought  into  an  action  of  partition 
by  constructive  service.  In  Essig  v.  Lower,  21  Northeastern  Rep. 
1090,  the  Supreme  Court  of  Indiana  thus  expressed  its  views  on  the 
question:  "It  is  also  argued  that  the  decree  in  the  action  to  quiet 
title,  set  forth  in  the  special  finding,  is  in  personam  and  not  in  rem, 
and  that  the  court  had  no  power  to  render  such  decree  on  publication. 
While  it  may  be  true  that  such  decree  is  not  in  rem,  strictly  speaking, 
yet  it  must  be  conceded  that  it  fixed  and  settled  the  title  to  the  land 
then  in  controversy,  and  to  that  extent  partakes  of  the  nature  of  a  judg- 
ment in  rem.    But  we  do  not  deem  it  necessary  to  a  decision  of  this  case 


240  AliNDT   V.    GRIGGS.  [CHAP.   HL 

to  determine  whether  the  decree  is  vi  personam  or  in  rem.  The  action 
was  to  quiet  the  title  to  the  land  then  involved,  and  to  remove  there- 
from certain  apparent  liens.  Section  318,  Rev.  Stat.  1881,  expressly 
authorizes  the  rendition  of  such  a  decree  on  publication."  This  was 
since  the  decision  in  Hart  v.  Sansom,  as  was  also  the  case  of  Dillen  v. 
Heller,  39  Kansas,  599,  in  which  Mr.  Justice  Valentine,  for  the  court, 
says  :  ' '  For  the  present  we  shall  assume  that  the  statutes  authorizing 
service  of  summons  by  publication  were  strictly  complied  with  in  the 
present  case,  and  then  the  only  question  to  be  considered  is  whether 
the  statutes  themselves  are  valid.  Or,  in  other  words,  we  think  the 
question  is  this  :  Has  the  State  any  power,  through  the  legislature  and 
the  courts,  or  b}-  any  other  means  or  instrumentalities,  to  dispose  of  or 
control  property  in  the  State  belonging  to  non-resident  owners  out  of 
the  State,  where  such  non-resident  owners  will  not  voluntarily  sur- 
render jurisdiction  of  their  persons  to  the  State  or  to  the  courts  of  the 
State,  and  where  the  most  urgent  public  policy  and  justice  require  that 
the  State  and  its  courts  should  assume  jurisdiction  over  such  property? 
Power  of  this  kind  has  already  been  exercised,  not  onl}'  in  Kansas,  but 
in  all  the  other  States.  Lands  of  non-resident  owners,  as  well  as  of 
resident  owners,  are  taxed  and  sold  for  taxes;  and  the  owners  thereby 
may  totall}'  be  deprived  of  such  lands,  although  no  notice  is  ever  given 
to  such  owners,  except  a  notice  by  publication,  or  some  other  notice  of 
no  greater  value,  force,  or  efficacy.  Beebe  v.  Doster,  36  Kansas,  666, 
675,  677  ;  s.  c.  14  Pac.  Rep.  150.  Mortgage  liens,  mechanics'  liens, 
material-men's  liens,  and  other  liens  are  foreclosed  against  non-resi- 
dent defendants  upon  service  by  publication  only.  Lands  of  non-resi- 
dent defendants  are  attached  and  sold  to  pa}'  their  debts  ;  and,  indeed, 
almost  any  kind  of  action  ma}'  be  instituted  and  maintained  against 
non-residents  to  the  extent  of  any  interest  in  property  the}'  may  have 
in  Kansas,  and  the  jurisdiction  to  hear  and  determine  in  this  kind  of 
cases  may  be  obtained  wholly  and  entirely  by  publication.  Gillespie 
V.  Thomas,  23  Kansas,  138  ;  Walkeuhorst  v.  Lewis,  24  Kansas,  420  ; 
Rowe  V.  Palmer,  29  Kansas,  337  ;  Venablc  v.  Dutch,  37  Kansas,  515, 
519.  All  the  States  by  proper  statutes  authorize  actions  against  non- 
residents, and  service  of  summons  therein  by  publication  only,  or  ser- 
vice in  some  other  form  no  better;  and,  in  the  nature  of  things,  such 
must  be  done  in  every  jurisdiction,  in  order  that  full  and  complete 
justice  may  be  done  where  some  of  the  parties  are  non-residents.  We 
think  a  sovereign  State  has  the  power  to  do  just  such  a  thing.  All 
things  within  the  territorial  boundaries  of  a  sovereignty  are  within  its 
jurisdiction  ;  and,  generally,  within  its  own  boundaries  a  sovereignty  is 
supreme.  Kansas  is  supreme,  except  so  far  as  its  power  and  author- 
ity are  limited  by  the  Constitution  and  laws  of  the  United  States  ;  and 
within  the  Constitution  and  laws  of  the  United  States  the  courts  of 
Kansas  may  have  all  the  jurisdiction  over  all  persons  and  things  within 
the  State  which  the  constitution  and  laws  of  Kansas  may  give  to  them  ; 
and  the  mode  of  obtaining  this  jurisdiction  may  be  prescribed  wholly, 


SECT.    I.]  AENDT    V.    GRIGGS. 


141 


entire!}-,  and  exclusively  b}-  the  statutes  of  Kansas.  To  obtain  juris- 
diction of  everything  within  the  State  of  Kansas,  the  statutes  of  Kan- 
sas may  make  service  by  publication  as  good  as  any  other  kind  of 
service."  , 

Turning  now  to  the  decisions  of  this  court :  In  Boswell's  Lessee  v. 
Otis,  9  How.  336,  348,  was  presented  a  case  of  a  bill  for  a  specific 
performance  and  an  accounting,  and  in  which  was  a  decree  for  specific 
performance  and  accounting  ;  and  an  adjudication  that  the  amount  due 
on  such  accounting  should  operate  as  a  judgment  at  law.  Service  was 
had  by  publication,  the  defendants  being  non-residents.  The  validity 
of  a  sale  under  such  judgment  was  in  question;  the  court  held  that 
portion  of  the  decree,  and  the  sale  made  under  it,  void  ;  but  with  refer- 
ence to  jurisdiction  in  a  case  for  specific  performance  alone,  made  these 
observations :  "  Jurisdiction  is  acquired  in  one  of  two  modes  :  first,  as 
against  the  person  of  the  defendant,  by  the  service  of  process ;  or, 
secondly,  by  a  procedure  against  the  property  of  the  defendant  within 
the  jurisdiction  of  the  court.  In  the  latter  case  the  defendant  is  not 
personally  bound  by  the  judgment,  beyond  the  property  in  question. 
And  it  is  immaterial  whether  the  proceeding  against  the  property  be 
by  an  attachment  or  bill  in  chancery.  It  must  be  substantiallv  a  pro- 
ceeding in  rem.  A  bill  for  the  specific  execution  of  a  contract  to  con- 
vey real  estate  is  not  strictly  a  proceeding  in  rem.,  in  ordinary'  cases ; 
but  where  such  a  procedure  is  authorized  by  statute,  on  publication, 
without  personal  service  or  process,  it  is  substantially  of  that  character." 

In  the  case  of  Parker  v.  Overman,  IS  How.  137, 140,  the  question  was 
presented  under  an  Arkansas  statute,  a  statute  authorizing  service  bj- 
publication.  While  the  decision  on  the  merits  was  adverse,  the  court  thus 
states  the  statute,  the  case  and  the  law  applicable  to  the  proceedino-s  un- 
der it :  "It  had  its  origin  in  the  State  court  of  Dallas  County,  Arkansas, 
sitting  in  chancer}-.  It  is  a  proceeding  under  a  statute  of  Arkansas,  pre- 
scribing a  special  remedy  for  the  confirmation  of  sales  of  land  by  a  sheriff 
or  other  public  officer.  Its  object  is  to  quiet  the  title.  The  purchaser 
at  such  sales  is  authorized  to  institute  proceedings  by  a  public  notice  in 
some  newspaper,  describing  the  land,  stating  the  authoritv  under  which 
it  was  sold,  and  '  calling  on  all  persons  who  can  set  up  anv  right  to  the 
lands  so  purchased,  in  consequence  of  any  informality,  or  an}'^  irregu- 
larit}-  or  illegalit}'  connected  with  the  sale,  to  show  cause  why  the  sale 
so  made  should  not  be  confirmed.'  In  case  no  one  appears  to  contest 
the  regularity  of  the  sale,  the  court  is  required  to  confirm  it,  on  finding 
certain  facts  to  exist.  But  if  opposition  be  made,  and  it  should  ap- 
pear that  the  sale  was  made  '  contrar}'  to  law,'  it  became  the  dutv  of 
the  court  to  annul  it.  The  judgment  or  decree,  in  favor  of  the  grantee 
in  the  deed,  operates  '  as  a  complete  bar  against  an}-  and  all  persons 
who  may  thereafter  claim  such  land,  in  consequence  of  any  informality 
or  illegality  in  the  proceedings.'  It  is  a  very  great  evil  in  any  com- 
munity to  have  titles  to  land  insecure  and  uncertain  ;  and  especially 
in  new  States,  where  its  result  is  to  retard  the  settlement  and  improve- 


142 


ARNDT   V.    GRIGGS.  [CHAP.    III. 


ment  of  their  vacant  lands.  Where  such  lands  have  been  sold  for 
taxes  there  is  a  cloud  on  the  title  of  both  claimants,  which  deters  the 
settler  from  purchasing  from  either.  A  prudent  man  will  not  purclmse 
a  lawsuit,  or  risly  the  loss  of  his  mone}-  and  labor  upon  a  litigious  title. 
The  act  now  under  consideration  was  intended  to  remed}'  this  evil.  It 
is  in  substance  a  bill  of  peace.  The  jurisdiction  of  the  court  over  the 
controvers}-  is  founded  on  the  presence  of  the  property- ;  and,  like  a 
proceeding  i?i  rem,  it  becomes  conclusive  against  the  absent  claimant, 
as  well  as  the  present  contestant.  As  was  said  by  the  court  in  Clark 
V.  Smith,  13  Pet.  195,  203,  with  regard  to  a  similar  law  of  Kentucky: 
'  A  State  has  an  undoubted  power  to  regulate  and  protect  individual 
rights  to  her  soil,  and  declare  what  shall  form  a  cloud  over  titles  ;  and, 
having  so  declared,  the  courts  of  the  United  States,  by  removing  such 
clouds,  are  onlj-  applying  an  old  practice  to  a  new  equity  created  b}'  the 
legislature,  having  its  origin  in  the  peculiar  condition  of  the  country. 
The  State  legislatures  have  no  authority  to  prescribe  forms  and  modes 
of  proceeding  to  the  courts  of  the  United  States  ;  yet  having  created  a 
right,  and  at  the  same  time  prescribed  the  remedy  to  enforce  it,  if  the 
remed}'  prescribed  be  substantialh*  consistent  with  the  ordinary  modes 
of  proceeding  on  the  chancery  side  of  the  Federal  courts,  no  reason 
exists  why  it  should  not  be  pursued  in  the  same  form  as  in  the  State 
court.'  In  the  case  before  us  the  proceeding,  though  special  in  its 
form,  is  in  its  nature  but  the  application  of  a  well  known  chancer}' 
remed}' ;  it  acts  upon  the  land,  and  may  be  conclusive  as  to  the  title  of 
a  citizen  of  another  State." 

In  the  case  of  Pennoyer  v.  Neff,  95  U.  S.  714,  727,  734,  in  which 
the  question  of  jurisdiction  in  cases  of  service  b}'  publication  was  con- 
sidered at  length,  the  court,  by  Mr.  Justice  Field,  thus  stated  the  law  : 
"Such  service  may  also  be  sufficient  in  cases  where  the  object  of  the 
action  is  to  reach  and  dispose  of  propert}'  in  the  State,  or  of  some  inter- 
est therein,  by  enforcing  a  contract  or  lien  respecting  the  same,  or  to 
partition  it  among  ditfei'ent  owners,  or,  when  the  [)ublic  is  a  party,  to 
condemn  and  appro[)riate  it  for  a  public  purpose.  In  other  words, 
such  service  may  answer  in  all  actions  wliich  are  substantially'  proceed- 
ings in  re)//.  ...  It  is  true  that,  in  a  strict  sense,  a  proceeding  hi  rem 
is  one  taken  directly;  against  property,  and  has  for  its  object  the  dis- 
position of  the  property,  without  reference  to  the  title  of  individual 
claimants;  but,  in  a  larger  and  more  general  sense,  the  terms  are 
api)lied  to  actions  between  parties,  where  the  direct  object  is  to  rcacli 
and  dispose  of  property  owned  by  them,  or  of  some  interest  therein. 
Such  are  cases  commenced  b^'  attachment  against  the  property  of 
debtors,  or  instituted  to  pai'tition  real  estate,  foreclose  a  mortgage,  or 
enforce  a  lien.  So  far  as  they  affect  property  in  the  State,  they  are 
substantially  proceedings  hi  rem  in  the  broader  sense  which  we  have 
mentioned."  These  cases  were  all  l)efore  the  decision  of  Ihut  o. 
Sansom. 

Passing  to  a  case  later  than  that,  Iluling  lk   Kaw  Valley  Railway, 


SECT.    I.]  AKNDT    V.    GRIGGS.  143 

130  U.  S.  559,  563,  it  was  held  that,  in  proceedings  commenced  under 
a  statute  for  the  condemnation  of  lands  for  raih'oad  purposes,  publica- 
tion was  sufficient  notice  to  a  non-resident.  In  tiie  opinion,  Mr.  Jus- 
tice Miller,  speaking  for  the  court,  says  :  "Of  course,  the  statute  goes 
upon  the  presumption  that,  since  all  the  parties  cannot  be  served  per- 
sonally with  such  notice,  the  publication,  which  is  designed  to  meet  the 
eyes  of  everybody,  is  to  stand  for  sucli  notice.  The  publication  itself 
is  sufficient  if  it  had  been  in  the  form  of  a  personal  service  upon  the 
party  himself  within  the  county.  Nor  have  we  any  doubt  that  this  form 
of  warning  owners  of  property  to  appear  and  defend  their  interests, 
where  it  is  subject  to  demands  for  public  use  when  authorized  b}^  statute, 
is  sufficient  to  subject  the  property  to  the  action  of  the  tribunals  ap- 
pointed by  proper  authority  to  determine  those  matters.  The  owner  of 
real  estate,  who  is  a  non-resident  of  the  State  within  which  the  property 
lies,  cannot  evade  the  duties  and  obligations,  which  the  law  imposes 
upon  him  in  regard  to  such  property,  by  his  absence  from  the  State.  Be- 
cause he  cannot  be  reached  by  some  process  of  the  courts  of  the  State, 
which,  of  course,  have  no  efficacy  beyond  their  own  borders,  he  cannot, 
therefore,  hold  his  property  exempt  from  the  liabilities,  duties,  and  obli- 
gations which  the  State  has  a  right  to  impose  upon  such  property  ;  and 
in  such  cases,  some  substituted  form  of  notice  has  always  been  held  to 
be  a  sufficient  warning  to  the  owner,  of  the  proceedings  which  are 
being  taken  under  the  authority  of  the  State  to  subject  his  property  to 
those  demands  and  obligations.  Otherwise  the  burdens  of  taxation  and 
the  liability  of  such  property  to  be  taken  under  the  power  of  eminent 
domain,  would  be  useless  in  regard  to  a  very  large  amount  of  property 
in  every  State  of  the  Union."  In  this  connection,  it  is  well  to  bear  in 
mind,  that  by  the  statutes  of  the  United  States,  in  proceedings  to 
enforce  any  legal  or  equitable  lien,  or  to  remove  a  cloud  upon  the  title 
of  real  estate,  non-resident  holders  of  real  estate  may  be  brought  in  by 
publication,  18  Stat.  472  ;  and  the  validity  of  this  statute,  and  the 
jurisdiction  conferred  by  publication,  has  been  sustained  by  this  court. 
Mellen  v.  Moline  Iron  Works,  131  U.  S.  352. 

These  various  decisions  of  this  court  establish  that,  in  its  judgment, 
a  State  has  power  by  statute  to  provide  for  the  adjudication  of  titles  to 
real  estate  within  its  limits  as  against  non-residents  who  are  brought 
into  court  only  by  publication  ;  and  that  is  all  that  is  necessary  to  sus- 
tain the  validity  of  the  decree  in  question  in  this  case. 

Nothing  inconsistent  with  this  doctrine  was  decided  in  Hart  v.  San- 
som,  supra.  The  question  there  was  as  to  the  effect  of  a  judgment. 
That  judgment  was  rendered  upon  a  petition  in  ejectment  against  one 
Wilkerson.  Besides  the  allegations  in  the  petition  to  sustain  the  eject- 
ment against  Wilkerson,  were  allegations  that  other  defendants  named 
had  executed  deeds,  which  were  described,  which  were  clouds  upon 
plaintiffs'  title  ;  and  in  addition  an  allegation  that  the  defendant  Hart 
set  up  some  pretended  claim  of  title  to  the  land.  This  was  the  only 
averment  connecting  him  with  the  controver.sy.     Publication  was  made 


144 


AKNDT    V.    GRIGGS.  [CIIAP.    III. 


against  some  of  the  defendants,  Hart  being  among  the  number.  There 
was  no  appearance,  but  judgment  upon  default.  That  judgment  was, 
that  the  plaintiffs  recover  of  the  defendants  the  premises  described ; 
"  that  the  several  deeds  in  plaintiffs'  petition  mentioned  be,  and  the 
same  are,  hereby  annulled  and  cancelled,  and  for  naught  held,  and  that 
the  cloud  be  thereby  removed  ; "  and  for  costs,  and  that  execution 
issue  therefor.  This  was  the  whole  extent  of  the  judgment  and  decree. 
Obviously  in  all  this  there  was  no  adjudication  affecting  Hart.  As 
there  was  no  allegation  that  he  was  in  possession,  the  judgment  for 
possession  did  not  disturb  him  ;  and  the  decree  for  cancellation  of  the 
deeds  referred  specifically  to  the  deeds  mentioned  in  the  petition,  and 
there  was  no  allegation  in  the  petition  tliat  Hart  had  anything  to  do 
with  those  deeds.  There  was  no  general  language  in  the  decree  quieting 
the  title  as  against  all  the  defendants  ;  so  there  was  nothing  which. could 
be  construed  as  working  any  adjudication  against  Hart  as  to  his  claim 
and  title  to  the  land.  He  might  apparently  be  affected  by  the  judg- 
ment for  costs,  but  they  had  no  effect  upon  the  title.  So  the  court 
held,  for  it  said  :  "  It  is  difficult  to  see  how  any  part  of  that  judgment 
(except  for  costs)  is  applicable  to  Hart ;  for  that  part  which  is  for 
recovery  of  possession  certainly  cannot  apply  to  Hart,  who  was  not  in 
possession;  and  that  part  which  removes  the  cloud  upon  the  plaintiffs' 
title  appears  to  be  limited  to  the  cloud  created  by  the  deeds  mentioned 
in  the  petition,  and  the  petition  does  not  allege,  and  the  verdict  nega- 
tives, that  Hart  held  any  deed." 

An  additional  ground  assigned  foi  the  decision  was  that  if  there  was 
any  judgment  (except  for  costs)  against  Hart,  it  was,  upon  the  most 
liberal  construction,  only  a  decree  removing  the  cloud  created  by  his 
pretended  claim  of  title,  and  therefore,  according  to  the  ordinary  and 
undisputed  rule  in  equity,  was  not  a  judgment  in  rem,  establishing 
against  him  a  title  in  the  land.  But  the  power  of  the  State,  by  appro- 
priate legislation,  to  give  a  greater  effect  to  such  a  decree  was  dis- 
tinctly recognized,  both  by  the  insertion  of  the  words  ''  unless  otherwise 
expressly  provided  by  statute,"  and  by  adding:  "  It  would  doubtless 
be  within  the  power  of  the  State  in  which  the  land  lies  to  provide  by 
statute  that  if  the  defendant  is  not  found  within  the  jurisdiction,  or 
refuses  to  make  or  to  cancel  a  deed,  this  should  be  done  in  his  behalf 
by  a  trustee  appointed  by  the  court  for  that  purpose."  And  of  course  it 
follows  that  if  a  State  has  power  to  bring  in  a  non-resident  by  publica- 
tion for  the  purpose  of  appointing  a  trustee,  it  can,  in  like  manner, 
bring  him  in  and  subject  him  to  a  direct  decree.  There  was  presented 
no  statute  of  the  State  of  Texas  providing  directly  for  quieting  the  title 
of  lands  within  the  State,  as  against  non-residents,  brought  in  only  by 
service  by  publication,  such  as  we  have  in  the  case  at  bar,  and  the 
only  statute  cited  by  counsel  or  referred  to  in  the  opinion  was  a  mere 
general  provision  for  bringing  in  non-resident  defendants  in  any  case 
by  pul)lication  ;  and  it  was  not  tiie  intention  of  tlie  court  to  overthrow 
that  scries  of  earlier  authorities  heretofore  referred  to,  which  affirm  the 


SECT.  II.]  BUCHANAN  V.   EUCKEK.  145 

power  of  the  State,  hy  suitable  statutory  proceedings,  to  determine  the 
titles  to  real  estate  within  its  limits,  as  against  a  non-resident  defend- 
ant, notified  onl}-  by  publication. 

It  follows,  from  these  considerations,  that  the  first  question  presented 
in  the  certificate  of  division,  the  one  heretofore  stated,  and  which  is 
decisive  of  this  case,  must  be  answered  in  the  affirmative. 


SECTION  II. 


PERSONAL   JURISDICTION. 


BUCHANAN   v.   RUCKER. 

King's  Bench.    1808. 

[Reported  9  East,  192.] 


The  plaintiff  declared  in  assumpsit  for  £2,000  on  a  foreign  judgment 
of  the  Island  Court  in  Tobago ;  and  at  the  trial  (  Yicle  1  Campbell's 
Ni.  Pri.  Cas.  63)  before  Lord  Ellenborough,  C.  J.,  at  Guildhall,  pro- 
duced a  copy  of  the  proceedings  and  judgment,  certified  under  the 
handwriting  of  the  Chief  Justice  and  the  seal  of  the  island,  which 
were  proved  ;  which,  after  containing  an  entr}'  of  the  declaration,  set 
out  a  summons  to  the  defendant,  therein  described  as  "  former!}-  of 
the  city  of  Dunkirk,  and  now  of  the  city  of  London,  merchant,"  to 
appear  at  the  ensuing  court  to  answer  the  plaintiff's  action ;  which 
summons  was  returned  "served,  etc.,  by  nailing  up  a  copy  of  the 
declaration  at  the  court-house  door,"  etc.,  on  which  judgment  was 
afterwards  given  by  default.  Whereupon  it  was  objected,  that  the 
judgment  was  obtained  against  the  defendant,  who  never  appeared  to 
have  been  within  the  limits  of  the  island,  nor  to  have  had  any  attorney 
there  ;  nor  to  have  been  in  any  other  way  subject  to  the  jurisdiction  of 

10 


146  BUCHANAN  V.    RUCKER.  [CHAP.  III. 

the  court  at  the  time  ;  and  was  therefore  a  nullity.  And  of  this  opinion 
was  Lord  EUenborough  ;  though  it  was  alleged  (of  which  however  there 
was  no  other  than  parol  proofj  that  this  mode  of  summoning  absentees 
was  warranted  by  a  law  of  the  island,  and  was  commonly  practised 
there  ;  and  the  plaintiff  was  thereupon  nonsuited.     And  now 

Taddy  moved  to  set  aside  the  nonsuit,  and  for  a  new  trial,  on  an 
affidavit  verifying  the  island  law  upon  this  suVyect,  which  stated, 
"  That  ever}-  defendant  against  whom  any  action  shall  be  entered, 
shall  be  served  with  a  summons  and  an  office  copy  of  the  dechiration, 
with  a  cop}-  of  the  account  annexed,  if  any,  at  the  same  time,  b}-  the 
Provost  Marshal,  etc.,  six  days  before  the  sitting  of  the  next  court, 
etc, ;  and  the  Provost  Marshal  is  required  to  serve  the  same  on  each 
defendant  in  person.  But  if  such  defendant  cannot  be  found,  and  is 
not  absent  from  the  island  ;  then  it  shall  be  deemed  good  service  by 
leaving  the  summons,  etc.,  at  his  most  usual  place  of  abode.  And  if 
the  defendant  be  absent  from  the  island,  and  hath  a  power  of  attorney 
recorded  in  the  secretary's  or  registrar's  office  of  Tobago,  and  the 
attorney  be  resident  in  the  island,  or  any  manager  or  overseer  on  his 
plantation  in  the  island,  the  service  shall  be  either  upon  such  attorney 
personally,  or  by  leaving  it  at  his  last  place  of  abode,  or  upon  such 
overseer  or  manager  personall}-,  or  by  leaving  it  at  the  house  upon  the 
defendant's  plantation  where  the  overseer  or  manager  usually  resides. 
But  if  no  such  attorne}',  overseer,  or  manager,  then  the  nailing  up  a 
copy  of  the  declaration  and  summons  at  the  entrance  of  the  court- 
house shall  be  held  good  service." 

Lord  Ellenborough,  C.  J.  There  is  no  foundation  for  this  motion 
even  upon  the  terras  of  the  law  disclosed  in  the  affidavit.  By  persons 
absent  from  the  island  must  necessarily  be  understood  persons  who 
have  been  present  and  within  the  jurisdiction,  so  as  to  have  been 
subject  to  the  process  of  the  court ;  but  it  can  never  be  applied  to  a 
person  who  for  aught  appears  never  was  present  within  or  subject  to 
the  jurisdiction.  Supposing,  however,  that  the  act  had  said  in  terms, 
that  though  a  person  sued  in  the  island  had  never  been  present  wilhin 
the  jurisdiction,  yet  that  it  should  bind  him  upon  proof  of  nailing  up 
the  summons  at  the  court  door :  how  could  that  be  obligatory  upon  the 
subjects  of  other  countries?  Can  the  island  of  Tobago  pass  a  law  to 
bind  the  rights  of  the  whole  world?  Would  the  world  submit  to  such 
an  assumed  jurisdiction?  The  law  itself,  however,  fairly  construed, 
does  not  warrant  such  an  inference:  for  "absent  from  the  island" 
must  be  taken  only  to  apply  to  persons  who  had  been  present  there, 
and  were  subject  to  the  jurisdiction  of  the  court  out  of  which  the 
process  issued  ;  and  as  nothing  of  that  sort  was  in  proof  here  to  show 
that  the  defendant  was  subject  to  the  jurisdiction  at  the  time  of  com- 
mencing the  suit,  there  is  no  foundation  for  raising  an  assumpsit  in  law 
upon  the  judgment  so  obtained.     Per  Curiam.  Rule  refused} 

1  Ace.  Wood  V.  Watkinson,  17  Conn.  500 ;  Howell  v.  Gordon,  40  Ga.  302  ;  Beard 
«.  Beard,  21  Ind.  321  ;  Rand  v.  Hanson,   154  Mass.  87  ;  Cocke  v.  Brewer,  68  Miss. 


SECT.    II.]  DOUGLAS    V.    FORREST.  147 

DOUGLAS  V.  FORREST. 

Court  of  Common  Pleas.     1828. 
[Reported  4  Bingham,  6S6.] 

Best,  C.  J.^  This  was  an  action  brought  by  the  assignees  of  Stein 
and  Co.,  bankrupts,  against  the  executor  of  the  will  of  John  Hunter. 

On  the  31st  Ma}',  1799,  the  testator  acknowledged  himself  to  be 
indebted  to  Stein  and  Co.  in  the  sum  of  £447  6s.  Zd. ;  and  on  the 
11th  June,  in  the  same  year,  he  acknowledged  that  he  owed  £75  to 
Robert  Smith,  one  of  the  bankrupts,  and  one  of  the  firm  of  Stein  and 
Co.  These  debts  were  contracted  in  Scotland,  of  which  country  the 
deceased  was  a  native,  and  in  which  he  had  a  heritable  property. 
Shortly  after  the  year  1799,  the  deceased  went  to  India.  He  died  in 
India  in  1817,  having  never  revisited  Scotland. 

On  the  25th  Februar}-,  1802,  two  decrees  were  pronounced  in  the 
Court  of  Session  in  Scotland  against  the  deceased,  one  at  the  instance 
of  Stein  and  Co.,  and  the  other  at  the  instance  of  Robert  Smith.  In 
the  first  of  these  the  deceased  was  ordered  to  pay  to  Stein  and  Co. 
£447  6s.  Zd.,  with  interest,  from  the         day  of  besides  expenses 

of  process,  etc.  In  the  second  decree  the  deceased  was  ordered  to  pay 
Robert  Smith  the  sum  of  £75,  with  interest,  from  the         of  , 

besides  expenses  of  process,  etc.  It  appeared,  from  these  decrees, 
that  the  deceased  was  out  of  Scotland  at  the  time  the  proceedings 
were  instituted  in  these  causes.  He  never  had  any  notice  of  those 
proceedings.  The  decrees  stated,  that  the  deceased  had  been  (accord- 
ing to  the  law  of  Scotland)  summoned  at  the  market  cross  of  Edinburgh, 
and  at  the  pier  and  shore  of  Leith.  A  Scotch  advocate  proved,  that, 
by  the  law  of  Scotland,  the  Court  of  Session  might  pronounce  judgment 
against  a  native  Scotchman  who  had  heritable  property  in  that  country, 
for  a  debt  contracted  in  Scotland,  although  the  debtor  had  no  notice  of 
any  of  the  proceedings,  and  was  out  of  Scotland  at  the  time.  After 
such  proclamations  as  were  mentioned  in  these  decrees  had  been  made, 
the  same  witness  proved,  that  a  person  against  whom  such  a  decree  was 
pronounced  might,  at  any  time  within  forty  years,  dispute  the  merits 
of  such  decree  ;  but  that  after  the  expiration  of  forty  years,  it  was 
conclusive  against  him,  and  all  who  claimed  under  him. 

By  a  decree  of  the  Court  of  Session,  of  the  date  of  the  5th  July,  1804, 
that  court  adjudged  that  certain  property  which  the  deceased  possessed 
in  Scotland  should  belong  to  Robert  Smith  and  his  heirs,  in  payment 
and  satisfaction  of  the  sura  of  £75,  with  interest,  from  the  11th  June, 
1799.     By  another  decree  of  the  same  date,   the   Court  of  Sessions 

775.  9  So.  823  ;  Whittier  v.  Wendell,  7  N.  H.  257  ;  Schwinger  v.  Hickok,  53  N.  Y. 
280  ;  Price  v.  Schaeffer,  161  Pa.  530,  29  Atl.  279.  — Ed. 
1  Part  of  the  opinion  is  omitted.  —  Ed. 


14S  >  DOUGLAS    V.    FORREST.  [CHAP.    III. 

adjudged,  that  certain  other  propertj'  of  the  deceased  in  Scotland 
should  belong  to  Stein  and  Co.  and  their  heirs,  in  payment  and  satis- 
faction of  the  sum  of  £447  6s.  3cZ.,  with  interest,  from  the  11th  of 
June,  1799.  The  two  last  decrees  fill  up  the  blanks  left  in  the  first 
decrees,  b}'  giving  the  time  from  which  interest  was  to  be  paid  on  the 
debts,  namel}',  from  the  11th  June,  1799;  and  if  the  plaintifll's  can 
maintain  their  action,  entitles  them  to  a  verdict  for  the  sum  of  £862. 
The  terms  in  which  the  two  last  decrees  are  expressed,  seem  to  import 
that  the  lands  adjudged  to  Stein  and  Co.  and  Smith  were  given  to  and 
accepted  by  them,  in  satisfaction  of  these  debts ;  but  this  cannot  be 
the  true  construction  of  these  decrees,  because  none  of  the  decrees  are 
conclusive  against  the  deceased  and  those  who  claim  under  him,  until 
the  expiration  of  forty  j-ears  from  the  time  of  pronouncing  the  two  first 
decrees.  The  advocate  who  was  examined  in  the  cause  proved,  that 
b}'  the  law  of  Scotland,  these  decrees  would  not  operate  as  satisfaction 
of  the  debts,  during  the  period  that  the  debtor  had  a  right  to  dispute 
the  validity  of  the  first  judgments.  A  Scotch  statute,  which  we  have 
looked  into,  shows  the  accuracy  of  the  opinion  given  to  us  on  the 
Scotch  laws  by  the  learned  advocate  ;  and  I  feel  it  due  to  him  to  say, 
that,  from  the  manner  in  which  he  gave  his  evidence,  the  clearness  and 
precision  with  which  he  explained  the  grounds  of  his  opinion,  I  have 
no  doubt  that  he  is  extremely  well  acquainted  with  the  Scotch  law,  and 
that  we  may  safely  rely  on  ever}'  part  of  his  evidence. 

The  two  last  decrees,  proving  that  interest  was  to  run  from  1799, 
and  the  testimony  of  the  learned  advocate,  who  proved,  that  when 
decrees  adjudged  that  interest  should  be  paid,  but  did  not  show  the 
time  from  which  it  was  to  run,  interest  was  payable  from  the  time  of 
the  citation, — disposes  of  the  objection  that  no  interest  could  be 
,  recovered  upon  these  decrees. 

The  plaintiffs  rested  their  claim  on  these  decrees.  The  defendant 
[insisted  that  these  decrees  would  not  support  an  action  in  our  courts, 
'because  they  were  repugnant  to  the  principles  of  justice,  having  been 
pronounced  whilst  the  deceased  was  at  a  great  distance  from  Scotland, 
and  without  any  notice  given  to  him  tliat  any  proceedings  were  insti- 
tuted against  him.  This  defence  was  made  on  the  general  issue.  The 
defendant  also  pleaded,  that  the  plaintiff's  oause  of  action  did  not 
accrue  within  six  years  before  the  commencement  of  the  suit.  To  this 
there  was  a  replication,  that  the  deceased,  at  tlie  time  when  tlie  cause 
of  action  accrued,  was  beyond  seas,  and  remained  beyond  the  seas 
until  the  year  1817,  when  he  died;  and  that  the  plaintiffs  sued  out 
tlieir  writ  against  the  defendant  within  six  years  after  lie  first  took  on 
himself  the  burthen  and  execution  of  the  will  of  the  deceased  in 
Great  Britain,  and  that  he  had  no  other  executor  in  Great  I>ritain. 
This  reidication  was  fully  proved,  and,  therefore,  the  issue  taken  on  it 
was  proper]}'  found  for  tlie  i)laiiitifrs. 

The  questions  to  be  decided   are,  first,  whether  an  action  can  bo 
maintained  in  England  on  these  judgments  of  the  Court  of  Session  in 


SECT.    II.]  DOUGLAS    V.   FORREST.  149 

Scotland  ;  secondly,  whether  the  replication  is  an  answer  to  the  pleas 
of  the  statute  of  limitations. 

On  the  first  question  we  agree  with  the  defendant's  counsel,  that  if 
these  decrees  are  repugnant  to  the  principles  of  universal  justice,  this 
court  ought  not  to  give  effect  to  them  ;  but  we  think  that  these  decrees 
are  perfectly  consistent  with  the  principles  of  justice.  If  we  held  that 
they  were  not  consistent  with  the  principles  of  justice,  we  should  con- 
demn the  proceedings  of  some  of  our  own  courts.  If  a  debt  be 
contracted  within  the  city  of  London,  and  the  creditor  issues  a  sum- 
mons against  the  debtor  to  which  a  return  is  made,  that  the  debtor  hath 
nothing  within  the  city  by  which  he  may  be  summoned,  or,  in  plainer 
words,  hath  nothing  by  the  seizure  of  which  his  appearance  may  be  en- 
forced, goods  belonging  to  the  debtor  in  the  hands  of  a  third  person, 
or  money  due  from  a  third  person  to  the  debtor,  may  be  attached  ;  and 
unless  the  debtor  appears  within  a  year  and  a  day,  and  disputes  his 
debt,  he  is  forever  deprived  of  his  property  or  the  debts  due  to  him. 

In  such  cases  the  defendant  may  be  in  the  East  Indies  whilst  the 
proceedings  are  going  on  against  him  in  a  court  in  London,  and  may 
not  know  that  any  such  proceedings  are  instituted.  Instead  of  the 
forty  years  given  by  the  Scotch  law,  he  has  only  one  year  given  to  him 
to  appear  and  prevent  a  decision  that  finally  transfers  from  him  his 
property.  Lord  Chief  Justice  De  Grey  thought  this  custom  of  foreign 
attachment  was  an  unreasonable  one,  but  it  has  existed  from  the  earliest 
times  in  London,  and  in  other  towns  in  England,  and  in  many  of  our 
colonies  from  their  first  establishment.  Lord  Chief  Justice  De  Grey  and 
the  Court  of  Common  Pleas,  after  much  consideration,  decided  against  the 
validit}-  of  the  attachment,  according  to  the  report  of  Fisher  v.  Lane  in 
3  Wilson,  297,  because  the  part}-  objecting  to  it  had  never  been  sum- 
moned or  had  notice.  The  report  of  the  same  case  in  2  Blackstone, 
834,  shows  that  the  court  did  not  think  a  personal  summons  necessary, 
or  any  summons  that  could  convey  any  information  to  the  person  sum- 
moned, but  a  summons  with  a  return  of  nihil;  that  is,  such  a  summons 
as  I  have  mentioned,  namely,  one  that  shows  that  the  debtor  is  not 
within  the  cit}-,  and  has  nothing  there,  by  the  seizing  of  which  he  may 
be  compelled  to  appear.  ^  The  54  G.  III.  c.  137  not  only  recognizes  the 
practices  on  which  these  fiecrees  are  founded,  as  being  according  to  the 
law  of  Scotland,  but  enacts,  that  on  notices  being  given  at  the  market 
cross  at  Edinburgh,  and  on  the  pier  and  shore  of  Leith,  to  debtors  out 
of  the  kingdom,  in  default  of  their  appearance  the  creditors  may  issue 
a  sequestration  against  their  effects!^  Can  we  say  that  a  practice  which 
the  legislature  of  the  United  Kingdom  has  recognized  and  extended  to 
other  cases  is  contrary  to  the  principles  of  justice? 

A  natural-born  subject  of  anj-  country,  quitting  that  countr}',  but 
leaving  property'  under  the  protection  of  its  law,  even  during  his 
absence,  owes  obedience  to  those  laws,  particularly  when  those  laws 
enforce  a  moral  obligation. 

The  deceased,  before  he  left  his  native  countrv,  acknowledged,  under 


150  SCHIBSBY    V.    WESTENHOLZ  [CHAP.    III. 

his  hand,  that  he  owed  the  debts  ;  he  was  under  a  moral  obligation  to 
discharge  those  debts  as  soon  as  he  could.  It  must  be  taken  for 
granted,  from  there  being  no  plea  of  pletie  admmistravit,  that  the 
deceased  had  the  means  of  paying  what  was  due  to  the  bankrupts. 
The  law  of  Scotland  has  only  enforced  the  performance  of  a  moral 
obligation,  by  making  his  executor  pay  what  he  admitted  was  due, 
with  interest  during  the  time  that  he  deprived  his  creditors  of  their  just 
debts. 

The  reasoning  of  Lord  Eilenborough,  in  the  case  of  Buchanan  v. 
Rucker  (1  Campb.  63,  and  9  East,  192),  is  in  favor  of  these  decrees. 
Speaking  of  a  case  decided  by  Lord  Kenyon,  his  Lordship  says,  in 
that  case  the  defendant  had  property  in  the  island,  and  might  be  con- 
sidered as  virtually  present.  The  court  decided  against  the  validity 
of  the  attachment,  because  it  did  not  appear  that  the  party  attaclied 
ever  was  in  the  island,  or  had  any  property  in  it.  In  both  these 
respects  that  case  is  unlike  the  present,  in  the  case  of  Cavan  v. 
Stewart,  Lord  Eilenborough  says,  you  must  prove  him  summoned, 
or,  at  least,  that  he  was  once  in  the  island  of  Jamaica,  when  the 
attachment  issued. 

To  be  sure  if  attachments  issued  against  persons  who  never  were 
within  the  jurisdiction  of  the  court  issuing  them  could  be  supported 
and  enforced  in  the  country  in  wliich  the  person  attached  resided,  the 
legislature  of  any  country  might  authorize  their  courts  to  decide  on  the 
rights  of  parties  who  owed  no  allegiance  to  the  government  of  such 
country,  and  were  under  no  obligation  to  attend  its  courts,  or  obey  its 
laws.  We  confine  our  judgment  to  a  case  where  the  party  owed  alle- 
giance to  the  country  in  which  the  judgment  was  so  given  against  him, 
from  being  born  in  it,. and  by  the  laws  of  which  country  his  property 
was,  at  the  time  those  judgments  were  given,  protected.  The  debts 
were  contracted  in  the  country  in  which  the  judgments  were  given, 
whilst  the  debtor  resided  in  it. 


SCHIBSBY  V.    WESTENHOLZ. 

Queen's  BEXcn.     1870. 

[Reported  Law  Reports,  6  Queen's  Bench,  155.] 

Blackburn,  J.  This  was  an  action  on  a  judgment  of  a  French  tribu- 
nal given  against  the  defendants  for  default  of  appearance. 

The  pleas  to  the  action  were,  amongst  others,  a  plea  of  never  in- 
debted, and,  tliirdly,  a  special  plea  asserting  tliat  the  defendants  were 
not  resident  or  domiciled  in  France,  or  in  any  way  subject  to  the  juris- 
diction of  the  French  court,  nor  did  they  appear ;  and  that  they  were 
not  summoned,  nor  had  any  notice  or  knowledge  of  the  pending  of  the 
proceedings,  or  any  oi)portunity  of  defending  themselves  therefrom. 
On  these  pleas  issue  was  joined. 


SECT.    II.]  SCHIBSBY   V.    WESTENHOLZ.  151 

On  the  trial  before  me  the  evidence  of  a  French  avocat  was  given, 
by  which  it  appeared  that  by  the  law  of  France  a  French  subject  may 
sue  a  foreigner,  though  not  resident  in  France,  and  that  fQj:_tlus-ptrr- 
pose  an  alien,  if  resident  in  t^-«"^-Q|  ■"^■^'^  considered  by  the  French  law 
ara  FTenclTsubject.^  The  mode  of  citation  in  such  a  case,  according 
to  the  French  law,  is  b}'  serving  the  summons  on  the  Procureur  Im- 
perial. If  the  foreign  defendant  thus  cited  does  not  within  one  month 
appear,  judgment  may  be  given  against  him,  but  he  may  still,  at  any 
time  within  two  months  after  judgment,  appear  and  be  heard  on  the 
merits.  After  that  lapse  of  time  the  judgment  is  final  and  conclusive. 
The  practice  of  the  imperial  government  is,  in  such  a  case,  to  forward 
the  summons  thus  served  to  the  consulate  of  the  countr}'  wliere  the  de- 
fendant is  resident,  with  directions  to  intimate  the  summons,  if  prac- 
ticable, to  the  defendant ;  but  this,  as  was  explained  by  the  avocat,  is 
not  required  by  the  French  law,  but  is  simply  done  by  the  imperial 
government  voluntarily  from  a  regard  to  fair  dealing. 

It  appeared  by  other  evidence  that  the  plaintiff  in  this  case  was  a 
Dane  resident  in  France.  The  defendants  were  also  Danes,  resident 
in  London  and  carrying  on  business  there.  A  written  contract  had 
been  made  between  the  plaintiff  and  defendants,  which  was  in  English, 
and  dated  in  London,  but  no  distinct  evidence  was  given  as  to  where 
it  was  signed.  We  thinlv,  however,  that,  if  that  was  material,  the  fair 
intendment  from  the  evidence  was  that  it  was  made  in  London.  By 
this  contract  the  defendants  were  to  ship  in  Sweden  a  cargo  of  Swedish 
oats  free  on  board  a  French  or  Swedish  vessel  for  Caen,  in  France,  at 
a  certain  rate  for  all  oats  delivered  at  Caen.  Payment  was  to  be  made 
on  receipt  of  the  shipping  documents,  but  subject  to  correction  for 
excess  or  deficiency  according  to  what  might  turn  out  to  be  the  delivery 
at  Caen.  From  the  correspondence  it  appeared  that  the  plaintiff"  as- 
serted, and  the  defendants  denied,  that  the  delivery  at  Caen  was  short 
of  the  quantity  for  which  the  plaintiff  had  paid,  and  that  the  plaintiff 
made  some  other  complaints  as  to  the  condition  of  the  cargo,  which 
were  denied  by  the  defendants.  The  plaintiff  very  plainly  told  the  de- 
fendants that  if  they  would  not  settle  the  claim  he  would  sue  them  in 
the  French  courts.  He  did  issue  process  in  the  manner  described,  and 
the  French  consulate  in  London  served  on  the  defendants  a  copy  of  the 
citation. 

The  following  admissions  were  then  made,  namely:  that  the  judg- 
ment was  regular  according  to  French  law;  that  it  was  given  in  favor 
of  the  plaintiff,  a  foreigner  domiciled  in  France,  against  the  defendants, 

1  See  Article  14  of  the  Code  Civil:  "L'etranger  meme  non  residaut  en  France 
I)onrra  etre  cite  devant  les  tribunaux  fran(;ais,  pour  I'execution  des  obligations  par  lui 
contractees  en  France  avec  nn  fran^ais ;  il  jjourra  etre  traduit  devant  les  tribunaux  de 
France  pour  les  obligations  par  lui  contractees  en  pays  etranger  en  vers  des  fran9ais." 

Codes  Annotes  de  Sirey :  Code  Civil,  Art.  U,  Note  42:  "  Un  etranger  qui  a  une 
maison  de  commerce  etablie  et  patente  en  France,  pent,  aussi  bien  qu'un  frangais. 
assit'ner  uu  autre  etranger  devant  un  tribunal  frangais." 


152  SCHIBSBY   V.    WESTENHOLZ.  [CHAP.    III. 

domiciled  in  England,  and  iu  no  sense  French  subjects,  and  having  no 
propert}-  in  France. 

I  then  ruled  that  I  could  not  enter  into  the  question  whether  the 
French  judgment  was  according  to  the  merits,  no  fraud  being  alleged 
or  shown. 

I  expressed  an  opinion  (which  I  have  since  changed)  that,  subject 
to  the  third  plea,  the  plaintiff  was  entitled  to  the  verdict,  but  reserved 
the  point. 

The  jur}-  found  that  the  defendants  had  notice  and  knowledge  of  the 
summons  and  the  pendency  of  the  proceedings  in  time  to  have  appeared 
and  defended  the  action  in  the  French  court.  I  then  directed  the  ver- 
dict for  the  plaintiff,  but  reserved  leave  to  enter  the  verdict  for  the 
defendants  on  these  facts  and  this  finding. 

No  question  was  raised  at  the  trial  as  to  the  sufficiency  of  the  pleas 
to  raise  the  defence.  If  there  had  been,  I  should  have  made  any 
amendment  necessary,  but,  in  fact,  we  are  of  opinion  that  none  was 
required. 

A  rule  was  accordingly  obtained  by  Sir  George  Honyman,  against 
which  cause  was  shown  in  the  last  term  and  in  the  sittings  after  it  be- 
fore my  Brothers  Mellor,  Lush,  Hannen,  and  myself.  During  the 
interval  between  the  obtaining  of  the  rule  and  the  showing  cause,  the 
case  of  Godard  v.  Gray,  L.  R.  6  Q.  B.  139,  on  which  we  have  just 
given  judgment,  was  argued  before  my  Brothers  Mellor,  Hannen,  and 
myself,  and  we  had  consequent!}-  occasion  to  consider  the  whole  subject 
of  the  law  of  England  as  to  enforcing  foreign  judgments. 

My  Brother  Lush,  who  was  not  a  party  to  the  discussions  in  Godard 
V.  Gray,  L.  R.  6  Q.  B.  139,  147,  has,  since  the  argument  in  the  present 
case,  perused  the  judgment  prepared  by  the  majority  in  Godard  v. 
Gra}-,  and  approves  of  it ;  and,  after  hearing  the  argument  in  the 
present  case,  we  are  all  of  opinion  that  the  rule  should  be  made 
absolute. 

It  is  unnecessary  to  repeat  again  what  we  have  already  said  in 
Godard  v.  Gray. 

We  think  that,  for  the  reasons  there  given,  the  true  principle  on 
which  the  judgments  of  foreign  tribunals  are  enforced  in  England  is 
that  stated  by  Parke,  B.,  in  Russell  v.  Smyth,  9  M.  &  W.  819,  and 
again  repeated  by  him  in  Williams  v.  Jones,  13  M.  &  W.  633,  that  the 
judgment  of  a  court  of  competent  jurisdiction  over  the  defendant  im- 
poses a  duty  or  obligation  on  the  defendant  to  pay  the  sum  for  which 
judgment  is  given,  which  the  courts  in  this  country  are  bound  to  en- 
force ;  and  consequently  that  anything  wliich  negatives  that  duty,  or 
forms  a  legal  excuse  for  not  performing  it,  is  a  defence  to  the  action. 

We  were  much  pressed  on  the  argument  with  the  fact  that  the  British 
legislature  has,  by  the  Common  Law  Procedure  Act,  1852  (15  &  16 
Vict.  c.  76),  ss.  18  &  19,  conferred  on  our  courts  a  power  of  summon- 
ing foreigners,  under  certain  circumstanecs,  to  appear,  and  in  case  they 
do  not,  giving  judgment  against  them  by  default.     It  was  this  consid- 


SECT.    II.]  SCHIBSBY   V.    "WESTENHOLZ.  153 

eration  principally  which  induced  me  at  the  trial  to  entertain  the  opinion 
which  I  then  expressed  and  have  since  changed.  And  we  think  that  if 
the  principle  on  which  foreign  judgments  were  enforced  was  that  which 
is  loosely  called  "  corait}-,"  we  could  hardly  decline  to  enforce  a  foreign 
judgment  given  in  France  against  a  resident  in  Great  Britain  under 
circumstances  hardly,  if  at  all,  distinguishable  from  those  under  which 
we,  tnutatis  mutandis^  might  give  judgment  against  a  resident  in 
France  ;  but  it  is  quite  different  if  the  principle  be  that  which  we  have 
just  laid  down. 

Should  a  foreigner  be  sued  under  the  provisions  of  the  statute  re- 
ferred to,  and  then  come  to  the  courts  of  this  country  and  desire  to  l>e 
discharged,  the  only  question  which  our  courts  could  entertain  would 
be  whether  the  acts  of  the  British  legislature,  rightly  construed,  gave 
us  jurisdiction  over  this  foreigner,  for  we  must  obej'  them.  But  if, 
judgment  being  given  against  him  in  our  courts,  an  action  were  brought 
upon  it  in  the  courts  of  the  United  States  (where  the  law  as  to  the 
enforcing  foreign  judgments  is  the  same  as  our  own),  a  further  question 
would  be  open,  viz..  not  only  whether  the  British  legislature  had  given 
the  English  courts  jurisdiction  over  the  defendant,  but  whether  he  was 
under  an\-  obligation  which  the  American  courts  could  recognize  to 
submit  to  the  jurisdiction' thus  created.  This  is  precisely  the  question 
which  we  have  now  to  determine  with  regard  to  a  jurisdiction  assumed 
by  the  French  jurisprudence  over  foreigners. 

Again,  it  was  argued  before  us  that  foreign  judgments  obtained  by 
default,  where  the  citation  was  (as  in  the  present  case)  by  an  artificial 
mode  prescribed  b}-  the  laws  of  the  country'  in  which  the  judgment  was 
given,  were  not  enforceable  in  this  countrv  because  such  a  mode  of 
citation  was  contrary  to  natural  justice,  and  if  this  were  so,  doubtless 
the  finding  of  the  jury  in  the  present  case  would  remove  that  ol3Jection. 
But  though  it  appears  by  the  report  of  Buchanan  v.  Rucker,  1  Camp. 
G3,  that  Lord  EUenborough  in  the  hurr}'  of  ^isi  Prius  at  first  used  ex- 
pressions to  this  effect,  j'et  when  the  case  came  before  him  in  banco  in 
Buchanan  v.  Rucker,  9  East,  192,  he  entirely  abandoned  what  (with 
all  deference  to  so  great  an  authority)  we  cannot  regard  as  more  than 
declamation,  and  rested  his  judgment  on  the  ground  that  laws  passed 
by  our  country  were  not  obligatory  on  foreigners  not  subject  to  their 
jurisdiction.  '*  Can,"  he  said,  "  the  Island  of  Tobago  pass  a  law  to 
bind  the  rights  of  the  whole  world  ?  " 

The  question  we  have  now  to  answer  is.  Can  the  empire  of  France 
pass  a  law  to  bind  the  whole  woi-ld?  We  admit,  with  perfect  can- 
dor, that  in  the  supposed  case  of  a  judgment,  obtained  in  this  country' 
against  a  foreigner  under  the  provisions  of  the  Common  Law  Pro- 
cedure Act,  being  sued  on  in  a  court  of  the  United  States,  the  question 
for  the  court  of  the  United  States  would  be,  Can  the  Island  of  Great 
Britain  pass  a  law  to  bind  the  whole  world  ?  We  think  in  each  case 
the  answer  should  be,  No,  but  every  country  can  pass  laws  to  bind  a 
great  many  persons  ;  and  therefore  the  further  question  has  to  be  de- 


154  SCHIBSBY    V.    WESTENHOLZ.  [cHAP.    III. 

termined,  whether  the  defendant  in  the  particular  suit  was  such  a  per- 
son as  to  be  bound  by  the  judgment  which  it  is  sought  to  enforce. 

Now  on  this  we  think  some  things  are  quite  clear  on  principle.  If  the 
defendants  had  been  at  the  time  of  the  judgment  subjects  of  the  coun- 
try whose  judgment  is  sought  to  be  enforced  against  them,  we  thhik 
that  its  laws  would  have  bound  them.  Again,  if  the  defendants  had 
been  at  the  time  when  the  suit  was  commenced  resident  in  the  country, 
so  as  to  have  the  benefit  of  its  laws  protecting  them,  or,  as  it  is  some- 
times expressed,  owing  temporary  allegiance  to  that  country,  we  think 
that  its  laws  would  have  bound  them. 

f  If  at  the  time  when  the  obligation  was  contracted  the  defendants 
were  within  the  foreign  country,  but  left  it  before  the  suit  was  insti- 
tuted, we  should  be  inclined  to  think  the  laws  of  that  country  bound 
them  ;  ^though  before  finallj- deciding  this  we  should  like  to  hear  the 
question  argued.  But  every  one  of  those  suppositions  is  negatived  in 
the  present  case. 

Again,  we  think  it  clear,  upon  principle,  that  if  a  person  selected, 
as  plaintiff,  the  tribunal  of  a  foreign  country  as  the  one  in  which  he 
would  sue,  he  could  not  afterwards  say  that  the  judgment  of  that 
tribunal  was  not  binding  upon  him. 

In  the  case  of  General  Steam  Navigation  Compau}-  v.  Guillou,  11 
M.  &  W.  877,  894,  on  a  demurrer  to  a  plea,  Parke,  B.,  in  delivering 
the  considered  judgment  of  the  Court  of  Exchequer,  then  consisting  of 
Lord  Abiuger,  C.B.,  Parke,  Alderson,  and  (4urney,  BB.,  thus  expresses 
himself:  "The  substance  of  the  plea  is  that  the  cause  of  action  has 
been  already  adjudicated  upon,  in  a  competent  court,  against  the  plain- 
tiffs, and  that  the  decision  is  binding  upon  them,  and  that  they  ought 
not  to  be  permitted  again  to  litigate  the  same  question.  Such  a  plea 
ought  to  have  had  a  proper  commencement  and  conclusion.  It  be- 
comes, therefore,  unnecessary  to  give  any  opinion  whether  the  pleas 
are  bad  in  substance  ;  but  it  is  not  to  be  understood  that  we  feel  much 
doubt  on  that  question.  Tliey  do  not  state  that  the  plaintiffs  were 
French  subjects,  or  resident,  or  even  present  in  France  when  the  suit 
began,  so  as  to  be  bound  by  reason  of  allegiance  or  temporary  pres- 
ence by  the  decision  of  a  French  court,  and  they  did  not  select  the 
tribunal  and  sue  as  plaintiffs,  in  any  of  which  cases  the  determination 
might  luive  possibl}'  bound  them.  They  were  mere  strangers,  who  put 
forward  the  negligence  of  the  defendant  as  an  answer,  in  an  adverse 
suit  in  a  foreign  country,  whose  laws  they  were  under  no  obligation 
to  obey."' 

It  will  be  seen  from  this  that  those  very  learned  judges,  besides  ex- 
pressing an  opinion  conformable  to  ours,  also  expressed  one  to  the 
effect  that  the  plaintiffs  in  that  suit  did  not  put  tliemselvcs  under  an 
obligation  to  obey  the  foreign  judgment,  merely  by  appearing  to  defend 
themselves  against  it.  On  the  other  hand,  in  Simpson  v.  Fogo,  1  John. 
&  II.  18,  20  L.  J.  (Ch.)  G57,  1  Hem.  &  M.  195,  32  L.  J.  (Ch.)  219, 
where  the  mortgagees  of  an  English  ship  had  come  into  the  courts  of 


SECT.    II.]  SCHIBSBY    V.   WESTENHOLZ.  355 

Louisiana,  to  endeavor  to  prevent  the  sale  of  their  ship  seized  under 
an  execution  against  the  mortgagors,  and  the  courts  of  Louisiana  de- 
cided against  them,  the  Vice-Chancellor  and  the  very  learned  counsel 
who  argued  in  the  case  seem  all  to  have  taken  it  for  granted  that  the 
decision  of  the  court  in  Louisiana  would  have  bound  the  mortgagees 
had  it  not  been  in  contemptuous  disregard  of  English  law.  The  oase 
of  General  Steam  Navigation  Company  v.  Guillou,  11  M.  &  W.  877, 
was  not  referred  to,  and  therefore  cannot  be  considered  as  dissented 
from  ;  but  it  seems  clear  that  they  did  not  agree  in  the  latter  part  of 
the  opinion  there  expressed. 

We  think  it  better  to  leave  this  question  open,  and  to  express  no 
opinion  as  to  the  effect  of  the  appearance  of  a  defendant,  where  it  i3 
so  far  not  voluntary  that  he  only  comes  in  to  try  to  save  some  prop- 
erty in  the  hands  of  the  foreign  tribunal.  But  we  must  observe  that 
the  decision  in  De  Cosse  Brissac  v.  Eathbone,  6  H.  &  X.  301,  30  L.  J. 
(Ex.)  238,  is  an  authority  that  where  the  defendant  voluntarily  appears 
and  takes  the  chance  of  a  judgment  in  his  favor  he  is  bound. 

In  Douglas  r.  Forrest,  4  Bing.  703,  the  court,  deciding  in  favor  of 
the  party  suing  on  a  Scotch  judgment,  say  :  ' '  We  confine  our  judg- 
ment to  a  case  where  the  party  owed  allegiance  to  the  country  in  which 
the  judgment  was  so  given  against  him,  from  being  born  in  it,  and  b}- 
the  laws  of  which  country  his  property  was,  at  the  time  those  judgments 
were  given,  protected.  The  debts  were  contracted  in  the  country 
in  which  the  judgments  were  given,  whilst  the  debtor  resided  in  it." 
Those  circumstances  are  all  negatived  here.  We  should,  however, 
point  out  that,  whilst  we  think  that  there  may  be  other  grounds  for 
holding  a  person  bound  by  the  judgment  of  the  tribunal  of  a  foreign 
country  than  those  enumerated  in  Douglas  v.  Forrest,  we  doubt  very 
muchCwhetlier  the  possession  of  property,  locally  situated  in  that 
country  and  protected  by  its  laws^/does  afford  such  a  ground.  It 
should  rather  seem  that,  whilst  every  tribunal  may  very  properly  exe- 
cute process  against  the  property  within  its  jurisdiction,  the  existence 
of  such  property,  which  may  be  very  small,  affords  no  sufficient  ground 
for  imposing  on  the  foreign  owner  of  that  property  a  duty  or  obligation 
to  fulfil  the  judgment.  But  it  is  unnecessary  to  decide  this,  as  the  de- 
fendants had  in  this  case  no  property  in  France.  As  to  this,  see  Lon- 
don and  North  Western  Railway  Company  v.  Lindsay,  3  Macq.  99. 

We  think,  and  this  is  all  that  we  need  decide,  that  there  existed 
nothing  in  the  present  case  imposing  on  the  defendants  any  duty  to 
obey  the  judgment  of  a  French  tribunal. 

We  think,  therefore,  that  the  rule  must  be  made  absolute. 

Rule  absolute} 

1  Ace.  McEweni;.  Ziramer,  38  Mich.  765  ;  Scott  v.  Noble,  72  Pa.  115  ;  Tillinghast 
V.  Boston,  &c.,  Co.,  39  S.  C.  484,  18  S.  E.  120.  See  Comber  v.  Leyland,  [1898]  A.  C. 
524.  —  Ed. 


156      SIRDAK    GURDYAL   SINGH   V.    RAJAH   OF   FARIDKOTE.     [CHAP.    IH. 


SIRDAR  GURDYAL  SINGH  v.  THE  RAJAH  OF  FARIDKOTE. 

Judicial  Committee  of  the  Privy  Council.     1894. 

[Reported  [1894]  Appeal  Cases,  670.] 

The  judgment  of  their  lordships  was  delivered  by  the 

Earl  of  Selborne.  The  respondent,  the  Rajah  of  Faridkote,  ob- 
tained in  the  civil  court  of  that  native  state,  ia  1879  and  1880,  two 
ex  parte  judgments,  in  two  suits  instituted  by  him  against  the  appel- 
lant, for  sums  amounting  together  to  Rs.  76,474  11a.  3p.,  and  costs. 
For  all  the  purposes  of  the  question  to  be  now  decided,  those  two  suits 
may  be  treated  as  one  ;  the  appeals  to  Her  Majesty  in  council  having 
been  consolidated.  Two  actions,  founded  on  these  judgments,  were 
brought  by  the  rajah  against  the  appellant  in  the  court  of  the  assistant 
commissioner  of  Lahore,  and  were  dismissed  by  that  court,  on  the 
ground  that  the  judgments  were  pronounced  by  the  Faridkote  court, 
without  jurisdiction  as  against  the  appellant.  On  appeal  to  the  addi- 
tional commissioner  of  Lahore,  the  judgments  of  the  first  court  were 
upheld.  The  rajah  then  appealed  to  the  chief  court  of  the  Punjaub, 
which  differed  from  both  those  tribunals,  and  upheld  the  jurisdiction  of 
the  Faridkote  court. 

Faridkote  is  a  native  state,  the  rajah  of  which  has  been  recognized 
by  Her  Majesty  as  having  an  independent  civil,  criminal,  and  fiscal 
jurisdiction.  The  judgments  of  its  courts  are,  and  ought  to  be,  regarded 
in  Her  Majesty's  courts  of  British  India  as  foreign  judgments.  The 
additional  commissioner  of  Lahore  thought  that  no  action  could  be 
brought  in  Her  Majesty's  courts  upon  a  judgment  of  a  native  state; 
but  in  this  opinion  their  lordsliips  do  not  concur. 

The  appellant  was  for  five  years,  beginning  in  1869,  in  the  service  of 
the  late  Rajah  of  Faridkote  as  his  treasurer  ;  and  the  causes  of  action, 
on  whicli  the  suits  in  the  Faridkote  court  were  brought,  arose  within 
that  state,  and  out  of  that  employment  of  the  appellant  by  the  late 
rajah.  The  claim  made  in  each  of  the  suits  was  merely  personal,  for 
money  alleged  to  be  due,  or  recoverable  in  the  nature  of  damages,  from 
the  appellant.  It  is  immaterial,  in  their  lordships'  view,  to  the  question 
of  jurisdiction  (which  is  tiie  only  question  to  be  now  decided)  whether 
the  case,  as  stated,  ought  to  be  regarded  as  one  of  contract  or  of  tort. 

The  appellant  left  the  late  rajah's  service,  and  ceased  to  reside  within 
his  territorial  jurisdiction,  in  1874.  He  was  from  that  time  generally 
resident  in  another  independent  native  state,  that  of  Jhind,  of  which  he 
was  a  native  subject  and  in  which  he  was  domiciled  ;  and  he  never  re- 
turned to  Faridkote  after  he  left  it  in  1874.  He  was  in  Jhind  when  he 
was  served  witii  certain  processes  of  the  Faridkote  court,  as  to  which 
it  is  unnecessary  for  their  lordships  to  determine  what  the  effect  would 
have  been  if  there  hud  been  jurisdiction.  He  disregarded  ihera.  and 
never  appeared  in  either  of  the  suits  instituted  by  the  rajah,  or  other- 


SECT.    II.]       SIRDAR   GURDYAL   SINGH   V.   RAJAH   OF   FARIDKOTE.      157 

wise  submitted  himself  to  that  jurisdiction.  He  was  under  no  obliga- 
tion to  do  so,  by  reason  of  the  notice  of  the  suits  which  he  thus  received 
or  otherwise,  unless  that  court  had  lawful  jurisdiction  over  him. 

Under  these  circumstances  there  was,  in  their  lordships'  opinion, 
nothing  to  take  this  case  out  of  the  general  rule,  that  the  plaintiff  must 
sue  in  the  court  to  which  the  defendant  is  subject  at  the  time  of  suit 
(actor  sequitur  forxim  rei),  which  is  rightly  stated  by  Sir  Robert  Phil- 
limore  (International  Law,  vol.  iv.,  s.  891)  to  "lie  at  the  root  of 
all  international,  and  of  most  domestic,  jurisprudence  on  this  matter." 
All  jurisdiction  is  properly  territorial,  and  extra  territorium  jus  dicenti, 
impune  non  paretur.  Territorial  jurisdiction  attaches  (with  special 
exceptions)  upon  all  persons  either  permanently  or  temporaril}'  resident 
within  the  territory  while  they  are  within  it ;  but  it  does  not  follow 
them  after  they  have  withdrawn  from  it,  and  when  they  are  living  in 
another  independent  country.  It  exists  alwa3-s  as  to  land  within  the 
territory,  and  it  may  be  exercised  over  movables  within  the  territory ; 
and,  in  questions  of  status  or  succession  governed  by  domicile,  it  may 
exist  as  to  persons  domiciled,  or  who  when  living  were  domiciled, 
within  the  territory.  As  between  different  provinces  under  one  sover- 
eignty (e.  0;  under  the  Roman  Empire)  the  legislation  of  the  sovereign 
may  distribute  and  regulate  jurisdiction  ;  but  no  territorial  legislation 
can  give  jurisdiction  which  any  foreign  court  ought  to  recognize  against 
foreigners,  who  owe  no  allegiance  or  obedience  to  the  power  which  so 
legislates. 

In  a  personal  action,  to  which  none  of  these  causes  of  jurisdiction 
apply,  a  decree  pronounced  in  absentem  hy  a  foreign  court,  to  the  juris- 
diction of  which  the  defendant  has  not  in  any  way  submitted  himself, 
is  by  international  law  an  absolute  nullity.  He  is  under  no  obligation 
of  any  kind  to  obey  it;  and  it  must  be  regarded  as  a  mere  nullity  by 
the  courts  of  every  nation  except  (when  authorized  by  special  local 
legislation)  in  the  country  of  the  forum  by  which  it  was  pronounced. 

These  are  doctrines  laid  down  by  all  the  leading  authorities  on  inter- 
national law  ;  among  others,  by  Story  (Conflict  of  Laws,  2d  ed.,  sects. 
546,  549,  553,  554,  556,  586),  and  by  Chancellor  Kent  (Commentaries, 
vol.  i.,  p.  284,  note  c,  10th  ed.),  and  no  exception  is  made  to  them,  in 
favor  of  the  exercise  of  jurisdiction  against  a  defendant  not  otherwise 
subject  to  it,  by  the  courts  of  the  country  in  which  the  cause  of  action 
arose,  or  (in  cases  of  contract)  by  the  courts  of  the  locus  solutionis. 
In  those  cases,  as  well  as  all  others,  when  the  action  is  personal,  the 
courts  of  the  country  in  which  a  defendant  resides  have  power,  and 
they  ought  to  be  resorted  to,  to  do  justice. 

The  conclusion  of  the  learned  judges  in  the  chief  court  of  the  Pun- 
jaub  is  expressed  in  the  following  sentence  of  the  judgment  delivered 
by  Sir  Meredyth  Plowden  in  the  first  of  the  two  actions  :  — 

"  On  the  whole,  I  think  it  may  be  said,  that  a  State  assuming  to  exer- 
cise jurisdiction  over  an  absent  foreigner,  in  respect  of  an  obligation 
arising  out  of  a  contract  made  by  the  foreigner  while  resident  in  the 


158      SIKDAR   GURDYAL   SINGH    V.    RAJAH    OF    FARIDKOTE.      [CHAP.  III. 

state  and  to  be  fulfilled  there,  is  not  acting  in  contravention  of  the 
general  practice  or  the  principles  of  international  law,  so  that  its  judg- 
ment should  not  be  binding  merely  on  the  ground  of  the  absence  of  the 
defendant." 

If  this  doctrine  were  accepted,  its  operation,  in  the  enlargement  of 
territorial  jurisdiction,  would  be  very  important.  No  authority,  of  any 
relevancy,  was  cited  at  their  lordships'  bar  to  supi)ort  it,  except  Becquet 
V.  ]\[acarthy,  2  B.  cSc  Ad.  951,  and  a  passage  from  the  judgment  deliv- 
ered by  Blackburn,  J.,  in  Schibsby  v.  Westenholz. 

Of  Becquet  v.  Macarthy,  it  was  said  by  great  authorit}-  in  Don  v. 
Lippman,  5  CI.  &  F.  1,  that  it  '*  had  been  supposed  to  go  to  the  verge 
of  the  law ; "  and  it  was  explained  (as  their  lordships  think,  cor- 
rectly) on  the  ground  that  "  the  defendant  held  a  public  office  in  the 
verj'  colon}'  in  which  he  was  originally  sued."  He  still  held  that  office 
at  the  time  when  he  was  sued ;  the  cause  of  action  arose  out  of,  or  was 
connected  with  it ;  and,  though  he  was  in  fact  temporarily  absent,  he 
might,  as  the  holder  of  such  an  office,  be  regarded  as  constructive!}' 
present  in  the  place  where  his  duties  required  his  presence,  and  there- 
fore amenable  to  the  colonial  jurisdiction.  If  the  case  could  not  be 
distinguished  on  that  ground  from  that  of  an}'  absent  foreigner  who,  at 
some  previous  time,  might  have  been  in  the  employment  of  a  colonial 
government,  it  would,  in  their  lordships'  opinion,  have  been  wrongl}^ 
decided;  and  it  is  evident  that  Fr}',  L. J. ,  in  Rousillon  v.  Rousillon, 
14  Ch.  D.  351,  toek  that  view. 

The  words  of  Blackburn,  J.'s,  judgment,  in  Schibsby  v.  Westenholz, 
which  were  relied  upon,  are  these  :  — 

'ilf,-at  the  time  when  the  oW4gation_vEas-XiQntract64,-tbe-d£f end  ants 
were  within  the  fQxeign--eo«iituy^ut4eft  it  i>efoi:e_the  suit_jEas  insti- 
tuted, we  should  be  inclined  to  tliink-tlie  law^-of  that  country  bound 
J,bem  P"thougTi7T)efor5~~fiTiatiy^decidIng  Ihis,  we  should  Jlke  to  hear  the 
question  argued^ 

Upon  this  sentence  it  is  to  be  observed,  that  beyond  doubt  in  such 
a  case  the  laws  of  the  countr}'  in  which  an  obligation  was  contracted 
might  bind  the  parties,  so  far  as  the  interpretation  and  effect  of  the 
obligation  was  concerned,  in  whatever  forum  the  remedy  might  be 
sought.  The  learned  judge  had  not  to  consider  whether  it  was  a  legiti- 
mate consequence  from  this,  that  they  would  be  bound  to  submit,  on 
the  footing  of  contract  or  otherwise,  to  an}-  assumption  of  jurisdiction 
over  them  in  respect  of  such  a  contract,  bv  the  tribunals  of  the  country 
in  which  the  contract  was  made,  at  any  subsequent  time,  although  they 
might  be  foreigners  resident  abroad.  That  question  was  not  argued, 
and  did  not  arise,  in  the  case  then  before  the  court ;  and,  if  this  was 
what  Blackl)urn,  J.,  meant,  their  lordsiiips  could  not  regard  any  mere 
inclination  of  opinion,  on  a  question  of  such  large  and  general  impor- 
tance, on  which  the  judges  themselves  would  have  desired  to  hear  argu- 
ment if  it  had  required  decision,  as  entitled  to  the  same  weight  whicli 
might  be  due  to  a  considered  judgment  of  the  same  authorit}'.     Upon 


SECT.    11.]  HENDERSON   V.    STANIFOKD.  150 

the  question  itself,  which  was  determined  in  Schibsb}'  v.  Westenholz, 
Blackburn,  J.,  had  at  the  trial  formed  a  different  opinion  from  that  at 
which  he  ultimately  arrived ;  and  their  lordships  do  not  doubt  that,  if 
he  had  hteard  argument  upon  the  question,  whether  an  obligation  to 
accept  the  foi'um  loci  contractus,  as  having,  by  reason  of  the  contract, 
a  conventional  jurisdiction  against  the  parties  in  a  suit  founded  upon 
that  contract  for  all  future  time,  wherever  they  might, be  domiciled  or 
resident,  was  generally  to  be  implied,  he  would  have  come  (as  their 
lordships  do)  to  the  conclusion,  that  such  obligation,  unless  expressed, 
could  not  be  implied. 

Their  lordships  will  therefore  humbly  advise  Her  Majesty  to  reverse 
the  decrees  of  the  chief  court  of  the  Punjaub,  and  to  restore  those  of 
the  additional  commissioner  of  Lahore.  The  respondent  will  pay  the 
costs  of  the  appeals  to  the  courts  below  and  of  these  appeals. 


HENDERSON   v.   STANIFORD. 
Supreme  Judicial  Court  of  Massachusetts.     1870. 

[Reported  105  Massachusetts,  504.] 

Contract  on  a  promissory  note  dated  October  20,  1864,  made  by 
the  defendant  payable  in  one  month  to  the  order  of  the  plaintiff,  who 
was  described  in  the  writ  (which  was  dated  January  20,  1869),  as  of 
Crescent  City  in  the  county  of  Del  Norte  and  State  of  California.  The 
answer  put  the  plaintiff  to  his  proof  concerning  the  making  of  the  note, 
and  set  up  "that  if  the  plaintiff  shall  show  that  the  defendant  made 
the  note,  then  the  defendant  answers  that  there  is  a  judgment  upon 
said  note  in  the  county  of  Del  Norte  and  State  of  California,  against 
the  defendant  and  in  favor  of  the  plaintiff,  and  the  same  has  never 
been  reversed,  reviewed,  or  annulled,  but  is  still  in  force  against  the 
defendant  in  said  State,  where  said  contract  was  made,  and  where  said 
defendant  for  a  long  time,  to  wit,  from  the  year  1849  until  some  time 
in  the  year  1867,  had  his  residence,  —  that  he  came  to  the  State  of 
Massachusetts  some  time  in  the  j'car  1867,  but  with  the  intention  in  a 
short  time  of  returning  to  the  State  of  California." 

The  parties  stated  the  case,  referring  to  the  pleadings,  admitting  the 
making  of  the  note  by  the  defendant,  and  continuing  as  follows  :  "In 
the  year  1849  the  defendant  went  from  Massachusetts  to  California, 
and  voted  and  was  taxed  there  until  he  returned  to  Massachusetts  in 
the  year  1867.  When  he  came  to  Massachusetts  it  was  his  intention 
to  return  to  California,  but  in  consequence  of  domestic  affliction  he 
has  remained  here.  While  in  California  he  had  his  residence  in  the 
township  of  Crescent,  otherwise  known  as  Crescent  City.  In  June, 
1868,  the  plaintiff  commenced  an  action  before  a  justice's  court,  against 


t60  DARKAH    V.    WATSON.  [CHAP.   III. 

this  defendant,  in  Crescent  townsliip  and  count}-  of  Del  Norte,  wliere 
said  defendant  had  resided,  upon  the  note  in  this  suit,  notice  of  the 
pendency  of  said  action  being  duly  given  by  publication  ;  and  the  same 
was  prosecuted  to  final  judgment  upon  default,  the  defendant  not 
appearing  personally  or  by  counsel.  Said  judgment  has  never  been 
arrested,  reversed,  reviewed,  or  annulled,  but  is  now  a  valid  and 
unsatisfied  judgment  in  full  force  in  the  State  of  California.  Upon 
the  above  facts  it  is  agreed  that  the  court  may  render  such  judgment 
as  is  warranted  by  the  pleadings."  The  superior  court  gave  judgment 
for  the  defendant,  and  the  plaintiff  appealed. 

Wells,  J.  The  defendant  was  not  in  California  when  the  .action 
was  commenced  against  him  there ;  nor  at  any  time  during  its  pend- 
ency. No  service  of  process  or  notice  was  ever  made  upon  him 
personally.  He  did  not  appear  by  counsel,  or  otherwise,  nor  assent 
to  the  judgment,  which  was  rendered  upon  his  default  of  appearance. 
But  he  had  been,  for  a  long  time  before  that,  a  citizen  of  California ; 
the  contract  was  made  there ;  and  that  continued  to  be  his  legal 
domicile  when  the  judgment  was  rendered.  He  was,  therefore,  upon 
principles  of  international  right,  subject  to  the  laws,  and  to  the  juris- 
diction of  the  courts  of  that  State.  Story  Confl.  Laws,  §§  546,  548; 
Hall  V.  Williams,  6  Pick.  232,  240  ;  Gillespie  r.  Commercial  Insurance 
Co.,  12  Gray,  201.  In  Massachusetts,  jurisdiction  is  assumed  to  be 
exercised  in  suits  against  parties  who  have  been  inhabitants  of  the 
State,  although  not  so  at  the  time  of  action  brought.  Gen.  Sts.  c.  126, 
§  1  ;  Morrison  v.  Underwood,  5  Cush.  52  ;  Orcutt  v.  Ranney,  10  Cush. 
183.  We  must  presume  that  the  exercise  of  jurisdiction,  in  the  suit 
in  question,  was  in  accordance  with  the  laws  of  California.  The  agreed 
facts  state  that  the  judgment ''  is  now  a  valid  and  unsatisfied  judgment, 
in  full  force  in  the  State  of  California."  ^ 


DARRAH   V.   WATSON. 

SuPREMK  Court  of  Iowa.     1873. 

[Reportcii  36  Iowa,  116.] 

Miller,  J.^  The  judgment  record,  on  which  this  action  is  brought, 
shows  that  the  action  was  commenced  in  the  county  court  of  Monon- 
galia County,  Virginia  (now  West  Virginia),  by  the  issuance  of  a  sum- 
mons, returnable  on  the  first  Monday  of  June,  1859.  The  sheriffs 
return  on  the  summons  shows  a  a  personal  service  thereof  on  the  6th 
day  of  June,  1859.  .  .  . 

1  The  remainder  of  the  opinion,  in  which  the  effect  of  the  judgment  is  discussed, 
is  here  omitted. 

Ace.  Hunt  V.  Hunt,  72  N.  Y.  217  ;  Frothingham  v.  Barnes,  9  R.  I.  474  (scmhle).^ 
Ed. 

'  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.    II.]  DARRAH    V.    WATSON.  161 

On  the  trial  the  defendant  Watson  was  sworn  as  a  witness,  and  tes- 
tified that  during  the  year  1859,  he  resided  in  Greene  Count}-,  Penns}-!- 
vania,  and  had  so  resided  there  for  about  three  or  four  years  prior  to 
June,  1859,  and  never  afterward  resided,  in  the  State  of  Virginia  ;  that 
during  the  month  of  June,  1859,  he  went  from  his  residence  in  Penn- 
sylvania into  Monongalia  Count}-,  Virginia,  temporarily  and  on  business  ; 
was  there  only  two  or  three  hours  and  returned  again  to  Greene  County, 
Pennsylvania,  which  latter  county  adjoins  Monongalia  County,  Vir- 
ginia ;  that  while  thus  in  the  latter  county  he  was  served  with  some 
kind  of  paper  or  process,  which  was  the  only  paper  or  process  ever 
served  on  him  in  said  county  ;  that  he  paid  no  attention  to  the  matter, 
never  appeared  in  the  action,  made  no  defence  and  authorized  no  one 
to  appear  for  him.  "Whereupon  defendant's  counsel  asked  the  court  to 
instruct  the  jury  in  substance,  that  if  they  found  that  the  defendant, 
at  the  time  of  the  rendition  of  the  judgment  in  Virginia,  was  not  a 
resident  of  or  domiciled  in  said  State,  but  was  a  resident  of  and  domi- 
ciled in  the  State  of  Pennsylvania  ;  that  defendant,  when  the  summons 
or  original  process  was  served  upon  him,  was  in  the  State  of  Virginia 
only  for  a  few  hours  temporarily  and  on  business  ;  that  defendant  never 
afterward  resided  in  said  State;  that  defendant  did  not  appear  to  the 
action  or  authorize  any  one  to  appear  for  him,  then  the  county  court 
of  Monongalia  County,  Virginia,  did  not,  by  virtue  of  such  service  or 
by  any  proceedings  in  said  action,  acquire  jurisdiction  of  the  person  of 
defendant  to  render  a  personal  judgment  as  would  be  binding  against 
him  in  this  State. 

This  instruction  was  refused,  and  this  ruling  is  assigned  as  error. 

We  have  before  said  that  the  insufficiency  of  the  service  of  the  sum- 
mons would  not  have  the  effect  to  render  the  judgment  void  as  for 
want  of  jurisdiction.  But  it  is  insisted  by  appellant's  counsel  that 
"  even  admitting  that  the  summons  had  been  served  in  time  and  per- 
sonally on  defendant  in  Virginia,"  the  court  did  not  acquire  juris- 
diction of  the  defendant  who  was  a  resident  of  another  State,  and 
never  afterward  was  a  resident  of  Virginia,  but  was  merely  temporarily 
therein  when  he  was  served  with  original  process  in  the  action.  Tlie 
position  assumed  by  counsel  is,  that  the  courts  of  Virginia  could  not 
acquire  jurisdiction  of  the  person  of  a  citizen  and  resident  of  Pennsyl- 
vania by  the  service  of  original  process  upon  him  while  temporarily  in 
the  former  State  on  business. 

The  doctrine  is  well  settled  that  no  State  can  by  its  judgments  ren- 
dered in  its  courts  bind  personally  a  defendant  who  is  not  within  its 
jurisdiction,  and  on  whom  no  notice  has  been  served.  Melhop  & 
Kingman  ?'.  Doane  &  Co.,  31  Iowa,  397,  and  cases  cited.  And  that 
to  entitle  a  judgment  rendered  in  one  State  to  the  full  faith  and  credit 
mentioned  in  the  Constitution  and  laws  of  the  United  States  the  court 
must  have  had  jurisdiction  not  only  of  the  subject-matter,  but  of  the 
person  of  the  defendant.  Ibid.  But  is  it  true  that  the  courts  of  one 
State  cannot  acquire  jurisdiction  of  the  person  of  a  citizen  and  resi- 

11 


162  ST.    CLAIR   V.    COX.  [chap.    III. 

dent  of  a  sister  State  by  the  service  of  original  process  upon  such 
citizen  within  the  jurisdiction  of  the  former  State?  We  think  it  is  not. 
In  the  only  case  cited  by  appellant's  counsel,  Bissell  v.  Briggs,  9  Mass. 
462,  Chief  Justice  Parsons,  on  page  470,  says :  "  Now,  an  inhabitant 
of  one  State  may,  without  changing  his  domicile,  go  into  another ;  he 
may  there  contract  a  debt  or  commit  a  tort,  and  while  there  he  owes  a 
temporary  allegiance  to  that  State,  is  bound  by  its  laws,  and  is  amen- 
able to  its  courts."  We  have  found  no  case  holding  a  contrary  doctrine 
to  this. 

Applying  this  doctrine  to  the  case  before  us,  we  hold  that  the  county 
court  of  Virginia  did  acquire  jurisdiction  of  the  person  of  the  defend- 
ant by  the  service  of  the  summons  upon  him  while  temporarily  within 
its  local  jurisdiction,  and  that  its  judgment  is  entitled  to  the  same  faith 
and  credit  in  this  State  as  it  was  entitled  by  the  laws  of  the  State  where 
rendered.  The  court  below  did  not  err,  therefore,  in  refusing  the  in- 
struction asked,  and  its  judgment  is  Affirmed.^ 


ST.    CLAIR  V.    COX. 

Supreme  Court  of  the  United  States.     1882. 

[Reported  106  United  States,  3.50.] 

Field,  J.  This  action  was  brought  by  the  plaintiff  in  the  conrt 
below,  to  recover  the  amount  due  on  two  promissory  notes  of  the 
defendants,  each  for  the  sum  of  S2,500,  bearing  date  on  the  2d  of 
August,  1.S77,  and  payable  five  months  after  date,  to  the  order  of  the 
Winthrop  Mining  Company,  at  the  German  National  Bank,  in  Chi- 
cago, with  interest  at  the  rate  of  seven  per  cent  per  annum. 

To  the  action  the  defendants  set  up  various  defences,  and,  among 
others,  substantially  these:  That  the  consideration  of  the  notes  had 
failed;  that  they  were  given,  with  two  others  of  like  tenor  and 
amount,  to  the  Winthrop  Mining  Company,  a  corporation  created 
under  .the  laws  of  Illinois,  in  part  payment  for  ore  and  other  prop- 
erty sold  to  the  defendants  upon  a  representation  as  to  its  quantity, 
which  proved  to  be  incorrect;  that  only  a  portion  of  the  quantity 
sold  was  ever  delivered,  and  that  the  value  of  the  deficiency  exceeded 
the  amount  of  the  notes  in  suit;  that  at  the  commencement  of  the 
action,  and  before  the  transfer  of  the  notes  to  the  plaintiff,  the 
Winthrop  IMining  Company  was  indebted  to  the  defendants  in  a 
iargc  sum,  viz.  810,000,  upon  a  judgment  recovered  by  them  in  the 
Circuit  Court  of  Manjuette  County,  in  the  State  of  Michigan,  and 
that  the  notes  were  transferred  to  him  after  their  maturity  and 
dishonor,  and  after  he  had  notice  of  the  defences  to  them. 

1  .Ice.  Alloy  V.  Ciispari,  80  Me.  234,  14  All.  12;  Tlioinpsoii  v.  Cowell,  148  Mass. 
562.  —  Ed. 


SECT.    II.]  ST.    CLAIU   V.    COX.  163 

On  the  trial,  evidence  was  given  by  the  defendants  tending  to 
show  that  the  plaintiff  was  not  a  bona  fide  holder  of  the  notes  for 
value.  A  certified  copy  of  that  judgment  was  also  produced  by  them 
and  offered  in  evidence;  but  on  his  objection  that  it  had  not  been 
shown  that  the  court  had  obtained  jurisdiction  of  the  parties,  it  was 
excluded,  and  to  the  exclusion  an  exception  was  taken.  The  jury 
found  for  him  for  the  full  amount  claimed;  and  judgment  having 
been  entered  thereon,  the  defendants  brought  the  case  here  for  review. 
The  ruling  of  the  court  below  in  excluding  the  record  constitutes  the 
only  error  assigned. 

The  judgment  of  the  Circuit  Court  in  Michigan  was  rendered  in 
an  action  commenced  by  attachment.  If  the  plaintiffs  in  that  action 
were,  at  its  commencement,  residents  of  the  State,  of  which  some 
doubt  is  expressed  by  counsel,  the  jurisdiction  of  the  court,  under 
the  writ,  to  dispose  of  the  property  attached,  cannot  be  doubted,  so 
far  as  was  necessary  to  satisfy  their  demand.  No  question  was 
raised  as  to  the  validity  of  the  judgment  to  that  extent.  The  objec- 
tion to  it  was  as  evidence  that  the  amount  rendered  was  an  existing 
obligation  or  debt  against  the  company.  If  the  court  had  not  ac- 
quired jurisdiction  over  the  company,  the  judgment  established  noth- 
ing as  to  its  liability  beyond  the  amount  which  the  proceeds  of  the 
property  discharged.  There  was  no  appearance  of  the  company  in 
the  action,  and  judgment  against  it  was  rendered  for  $6,450  by 
default.  The  officer,  to  whom  the  writ  of  attachment  was  issued, 
returned  that,  by  virtue  of  it,  he  had  seized  and  attached  certain 
specified  personal  property  of  the  defendant,  and  had  also  served 
a  copy  of  the  writ,  with  a  copy  of  the  inventory  of  the  property 
attached,  on  the  defendant,  "by  delivering  the  same  to  Henry  J. 
Colwell,  Esq.,  agent  of  the  said  Winthrop  Mining  Company,  person- 
ally, in  said  county." 

The  laws  of  Michigan  provide  for  attaching  property  of  abscond- 
ing, fraudulent,  and  non-resident  debtors  and  of  foreign  corpora- 
tions. They  require  that  the  writ  issued  to  the  sheriff,  or  other 
oflScer  by  whom  it  is  to  be  served,  shall  direct  him  to  attach  the 
property  of  the  defendant,  and  to  summon  him  if  he  be  found  within 
the  county,  and  also  to  serve  on  him  a  copy  of  the  attachment  and 
of  the  inventory  of  the  property  attached.  They  also  declare  that 
where  a  copy  of  the  writ  of  attachment  has  been  personallv  served 
on  the  defendant,  the  same  proceedings  may  be  had  thereon  in  the 
suit  in  all  respects  as  upon  the  return  of  an  original  writ  of  sum- 
mons personally  served  where  suit  is  commenced  by  such  summons. 
2  Comp.  Laws,  1871,  sects.  6397  and  6413. 

They  also  provide,  in  the  chapter  regulating  proceedings  by  and 
against  corporations,  that  "suits  against  corporations  may  be  com- 
menced by  original  writ  of  summons,  or  by  declaration,  in  the  same 
manner  that  personal  actions  may  be  commenced  against  individuals, 
and  such  writ,  or  a  copy  of  such  declaration,  in  any  suit  against  a 


164-  ST.    CLAIR   V.    COX.  [chap.    III. 

corporation,  may  be  served  on  the  presiding  officer,  the  cashier,  the 
secretary,  or  the  treasurer  thereof ;  or,  if  there  be  no  such  officer,  or 
none  can  be  found,  such  service  may  be  made  on  such  other  officer 
or  member  of  such  corporation,  or  in  such  other  manner  as  the  court 
in  which  such  suit  is  brought  may  direct;  "  and  that  "in  suits  com- 
menced by  attachment  in  favor  of  a  resident  of  this  State  against 
any  corporation  created  by  or  under  the  laws  of  any  other  State, 
government,  or  country,  if  a  copy  of  such  attachment  and  of  the 
inventory  of  property  attached  shall  have  been  personally  served  on 
any  officer,  member,  clerk,  or  agent  of  such  corporation  within  this 
State,  the  same  proceedings  shall  be  thereupon  had,  and  with  like 
effect,  as  in  case  of  an  attachment  against  a  natural  person,  which 
shall  have  been  returned  served  in  like  manner  upon  the  defendant." 
2  Comp.  Laws,  1871,  sects.  6544  and  6550. 

The  courts  of  the  United  States  only  regard  judgments  of  the 
State  courts  establishing  personal  demands  as  having  validity  or  as 
importing  verity  where  they  have  been  rendered  upon  personal  cita- 
tion of  the  party,  or,  what  is  the  same  thing,  of  those  empowered  to 
receive  process  for  him,  or  upon  his  voluntary  appearance. 

In  Pennoyer  v.  Neff  we  had  occasion  to  consider  at  length  the 
manner  in  which  State  courts  can  acquire  jurisdiction  to  render  a 
personal  judgment  against  non-residents  which  would  be  received 
as  evidence  in  the  Federal  courts;  and  we  held^that  personal  service 
of  citation  on  the  party  or  his  voluntary  appearance  was,  with  some 
exceptions,  essential  to  the  jurisdiction  of  the  court.)  The  excep- 
tions related  to  those  cases  where  proceedings  are  taken  in  a  State  to 
determine  the  status  of  one  of  its  citizens  towards  a  non-resident,  or 
where  a  party  has  agreed  to  accept  a  notification  to  others  or  service 
on  them  as  citation  to  himself.     95  U.  S.  714. 

The  doctrine  of  that  case  applies,  in  all  its  force,  to  personal  judg- 
ments of  State  courts  against  foreign  corporations.  The  courts 
rendering  them  must  have  acquired  jurisdiction  over  the  party  by 
personal  service  or  voluntary  appearance,  whether  the  party  be  a 
corporation  or  a  natural  person.  There  is  only  this  difference:  a 
corporation  being  an  artificial  being,  can  act  only  through  agentb,, 
and  only  through  them  can  be  reached,  and  process  must,  therefore, 
be  served  upon  them.  In  the  State  where  a  corporation  is  formed 
it  is  not  difficult  to  ascertain  who  are  authorized  to  represent  and 
act  for  it.  Its  charter  or  the  statutes  of  the  State  will  indicate  in 
whose  hands  the  control  and  management  of  its  affairs  are  placed. 
Directors  are  readily  found,  as  also  the  officers  appointed  by  them 
to  manage  its  business.  But  the  moment  the  boundary  of  the  State 
is  passed  difficulties  arise;  it  is  not  so  easy  to  determine  who  repre^ 
sent  the  corporation  there,  and  under  what  circumstances  service  on 
them  will  bind  it. 

Formerly  it  was  held  that  a  foreign  corporation  could  not  be  sued 
in  an  action  for  the  recovery  of  a  personal  demand  outside  of  the 


SECT.    II.]  ST.    CLAIR   V.   COX.  165 

State  by  which  it  was  chartered.  The  principle  that  a  corporation 
must  dwell  in  the  place  of  its  creation,  and  cannot,  as  said  by  Mr. 
Chief  Justice  Taney,  migrate  to  another  sovereignty,  coupled  with 
the  doctrine  that  an  officer  of  the  corporation  does  not  carry  his  func- 
tions with  him  when  he  leaves  his  State,  prevented  the  maintenance 
of  personal  actions  against  it.  There  was  no  mode  of  compelling 
its  appearance  in  the  foreign  jurisdiction.  Legal  proceedings  there 
against  it  were,  therefore,  necessarily  confined  to  the  disposition  of 
such  property  belonging  to  it  as  could  be  there  found ;  and  to  author- 
ize them  legislation  was  necessary. 

In  McQueen  v.  Middleton  Manufacturing  Co.,  decided  in  1819,  the 
Supreme  Court  of  New  York,  in  considering  the  question  whether 
the  law  of  that  State  authorized  an  attachment  against  the  property 
of  a  foreign  corporation,  expressed  the  opinion  that  a  foreign  cor- 
poration could  not  be  sued  in  the  State,  and  gave  as  a  reason  that 
the  process  must  be  served  on  the  head  or  principal  officer  within 
the  jurisdiction  of  the  sovereignty  where  the  artificial  body  existed; 
observing  that  if  the  president  of  a  bank  went  to  New  York  from 
another  State  he  would  not  represent  the  corporation  there ;( and  that 
"his  functions  and  his  character  would  not  accompany  him  when  he 
moved  beyond  the  jurisdiction  of  the  government  under  whose  laws 
he  derived  this  character."  1 16  Johns.  (N.  Y.)  5.  The  opinion  thus 
expressed  was  not,  perhaps,  necessary  to  the  decision  of  the  case, 
but  nevertheless  it  has  been  accepted  as  correctly  stating  the  law. 
It  was  cited  with  approval  by  the  Supreme  Court  of  Massachusetts, 
in  1834,  in  Peckham  v.  North  Parish  in  Haverhill,  the  court  adding 
that  all  foreign  corporations  were  without  the  jurisdiction  of  the 
process  of  the  courts  of  the  Commonwealth.  16  Pick.  (Mass.)  274. 
Similar  expressions  of  opinion  are  found  in  numerous  decisions, 
accompanied  sometimes  with  suggestions  that  the  doctrine  might  be 
otherwise  if  the  foreign  corporation  sent  its  officer  to  reside  in  the 
State  and  transact  business  there  on  its  account.  Libbey  v,  Hodg- 
don,  9  N.  H.  394;  Moulin  v.  Trenton  Insurance  Co.,  24  N.  J.  L. 
222. 

This  doctrine  of  the  exemption  of  a  corporation  from  suit  in  a 
State  other  than  that  of  its  creation  was  the  cause  of  much  incon- 
venience, and  often  of  manifest  injustice.  The  great  increase  in  the 
number  of  corporations  of  late  years,  and  the  immense  extent  of 
their  business,  only  made  this  inconvenience  and  injustice  more  fre- 
quent and  marked.  Corporations  now  enter  into  all  the  industries 
of  the  country.  The  business  of  banking,  mining,  manufacturing, 
transportation,  and  insurance  is  almost  entirely  carried  on  by  them, 
and  a  large  portion  of  the  wealth  of  the  country  is  in  their  hands. 
Incorporated  under  the  laws  of  one  State,  they  carry  on  the  most 
extensive  operations  in  other  States.  To  meet  and  obviate  this 
inconvenience  and  injustice,  the  legislatures  of  several  States  inter- 
posed, and  provided  for  service  of  process  on  officers  and  agents  of 


166  ST.    CLAIR   V.   COX.  [chap.    III. 

foreign  corporations  doing  business  therein.  Whilst  the  theoretical 
and  legal  view,  that  the  domicile  of  a  corporation  is  only  in  the 
State  where  it  is  created,  was  admitted,  it  was  perceived  that  when 
a  foreign  corporation  sent  its  officers  and  agents  into  other  States 
and  opened  offices,  and  carried  on  its  business  there,  it  was,  in 
effect,  as  much  represented  by  them  there  as  in  the  State  of  its  crea- 
tion. As  it  was  protected  by  the  laws  of  those  States,  allowed  to 
carry  on  its  business  within  their  borders,  and  to  sue  in  their  courts, 
it  seemed  only  right  that  it  should  be  held  responsible  in  those  courts 
to  obligations  and  liabilities  there  incurred. 

All  that  there  is  in  the  legal  residence  of  a  corporation  in  the  State 
of  its  creation  consists  in  the  fact  that  by  its  laws  the  corporators 
are  associated  together  and  allowed  to  exercise  as  a  body  certain 
functions,  with  a  right  of  succession  in  its  members.  Its  officers 
and  agents  constitute  all  that  is  visible  of  its  existence;  and  they 
mav  be  authorized  to  act  for  it  without  as  well  as  within  the  State. 
There  would  seem,  therefore,  to  be  no  sound  reason  why,  to  the 
extent  of  their  agency,  they  should  not  be  equally  deemed  to  repre- 
sent it  in  the  States  for  which  they  are  respectively  appointed  when 
it  is  called  to  legal  responsibility  for  their  transactions. 

The  case  is  unlike  that  of  suits  against  individuals.  They  can 
act  by  themselves,  and  upon  them  process  can  be  directly  served, 
but  a  corporation  can  only  act  and  be  reached  through  agents.     Serv-j 

ling  process  on  its  agents  in  other  States,  for  matters  within  the! 
sphere  of  their  agency,  is,  in  effect,  serving  process  on  it  as  muctJ 

Iso  as  if  such  agents  resided  in  the  State  where  it  was  created. 

1  A  corporation  of  one  State  cannot  do  business  in  another  State 
without  the  latter's  consent,  express  or  implied,  and  that  consent 
may  be  accompanied  with  such  conditions  as  it  may  think  proper  to 
impose.  As  said  by  this  court  in  Lafayette  Insurance  Co.  v.  French: 
"These  conditions  must  be  deemed  valid  and  effectual  by  other 
States  and  by  this  court,  provided  they  are  not  repugnant  to  the 
Constitution  or  laws  of  the  United  States,  or  inconsistent  with  those 
rules  of  public  law  which  secure  the  jurisdiction  and  authority  of 
each  State  from  encroachment  by  all  others,  or  that  principle  of 
natural  justice  which  forbids  condemnation  without  opportunity  for 
defence."     18  How.  404,  407;  Paul  v.  Virginia,  8  Wall.  1G8. 

The  State  may,  therefore,  impose  as  a  condition  upon  which  a 
foreign  corporation  shall  be  permitted  to  do  business  within  her 
limits,  that  it  shall  stipulate  that  in  any  litigation  arising  out  of  its 
transactions  in  the  State,  it  will  accept  as  sufficient  the  service  of 
process  on  its  agents  or  persons  specially  designated;  and  the  condi- 
tion would  be  eminently  fit  and  just.  And  such  condition  and  stipu- 
lation may  be  implied  as  well  as  expressed.  If  a  State  permits  a 
foreign  corporation  to  do  ])usiue8S  within  her  limits,  and  at  the  same 
time  provides  that  in  suits  against  it  for  business  there  done,  proc- 
ess shall  be  served  upon  its  agents,  the  provision  is  to  be  deemed  a 


SECT.    II.]  ST.    CLAIR   V.    COX.  167 

condition  of  the  permission;  and  corporations  that  subsequently  do 
business  in  the  State  are  to  be  deemed  to  assent  to  such  condition  as 
fully  as  though  they  had  specially  authorized  their  agents  to  receive 
service  of  the  process.  Such  condition  must  not,  however,  encroach 
upon  that  principle  of  natural  justice  which  requires  notice  of  a  suit 
to  a  party  before  he  can  be  bound  by  it.  ^^It  must  be  reasonable,  and 
the  service  provided  for  should  be  only  upon  such  agents  as  may  be 
properly  deemed  representatives  of  the  foreign  corporation.'^  The 
decision  of  this  court  in  Lafayette  Insurance  Co.  v.  French,  to  which 
we  have  already  referred,  sustains  these  views.  ^ 

The  State  of  Michigan  permits  foreign  corporations  to  transact 
business  within  her  limits.  Either  by  express  enactment,  as  in  the 
case  of  insurance  companies,  or  by  her  acquiescence,  they  are  as 
free  to  engage  in  all  legitimate  business  as  corporations  of  her  own 
creation.  Her  statutes  expressly  provide  for  suits  being  brought  by 
them  in  her  courts;  and  for  suits  by  attachment  being  brought 
against  them  in  favor  of  residents  of  the  State.  And  in  these 
attachment  suits  they  authorize  the  service  of  a  copy  of  the  writ  of 
attachment,  with  a  copy  of  the  inventory  of  the  property  attached, 
on  "any  officer,  member,  clerk,  or  agent  of  such  corporation"  within 
the  State,  and  give  to  a  personal  service  of  a  copy  of  the  writ  and  of 
the  inventor}'  on  one  of  these  persons  the  force  and  effect  of  personal 
service  of  a  summons  on  a  defendant  in  suits  commenced  by  summons. 

It  thus  seems  that  a  writ  of  foreign  attachment  in  that  State  is 
made  to  serve  a  double  purpose,  —  as  a  command  to  the  officer  to 
attach  property  of  the  corporation,  and  as  a  summons  to  the  latter 
to  appear  in  the  suit.  We  do  not,  however,  understand  the  laws  as 
authorizing  the  service  of  a  copy  of  the  writ,  as  a  summons,  upon 
an  agent  of  a  foreign  corporation,  unless  the  corporation  be  engaged 
in  ])usiness  in  the  State,  and  the  agent  be  appointed  to  act  there. 
We  so  construe  the  words  "agent  of  such  corporation  within  this 
State."  They  do  not  sanction  service  upon  an  officer  or  agent  of  the 
corporation  who  resides  in  another  State,  and  is  only  casually  in  the 
State,  and  not  charged  with  any  business  of  the  corporation  there. 
The  decision  in  Newell  v.  Great  Western  Railway  Co.,  reported  in 
the  19th  of  Michigan  Reports,  supports  this  view,  although  that  was 
the  case  of  an  attempted  service  of  a  declaration  as  the  commence- 
ment of  the  suit.  The  defendant  was  a  Canadian  corporation  own- 
ing and  operating  a  railroad  from  Suspension  Bridge  in  Canada  to 
the  Detroit  line  at  Windsor  opposite  Detroit,  and  carrying  passen- 
gers in  connection  with  the  Michigan  Central  Railroad  Company, 
upon  tickets  sold  by  such  companies  respectively.  The  suit  was 
commenced  in  Michigan,  the  declaration  alleging  a  contract  by  the 
defendant  to  carry,  the  plaintiff  over  its  road,  and  its  violation  of  the 

I  Ace.  Compagnie  Generale  Transatlantique  v.  Law,  [1899]  A.  C.  431  ;  Fireman's 
Ins.  Co.  V.  Thompson,  155  111.  204,  40  N.  E.  488  ;  Reyer  v.  Odd  Fellows'  Ace. 
Assoc,  157  Mass.  367.  — Ed. 


168  ST.    CLAIR   V.   COX.  [CHAP.   III. 

contract  by  removing  him  from  its  cars  at  an  intermediate  station. 
The  declaration  was  served  upon  Joseph  Price,  the  treasurer  of  the 
corporation,  who  was  only  casually  in  the  State.  The  corporation 
appeared  specially  to  object  to  the  jurisdiction  of  the  court,  and 
pleaded  that  it  was  a  foreign  corporation,  and  had  no  place  of  busi- 
ness or  agent  or  otiicer  in  the  State,  or  attorney  to  receive  service  of 
legal  process,  or  to  appear  for  it;  and  that  Joseph  Price  was  not  in 
the  State  at  the  time  of  service  on  him  on  any  official  business  of  the 
corporation.  The  plaintiff  having  demurred  to  this  plea,  the  court 
held  the  service  insutticient.  "The  corporate  entity,"  said  the  court, 
"could  by  no  possibility  enter  the  State,  and  it  could  do  nothing 
more  in  that  direction  than  to  cause  itself  to  be  represented  here  by 
its  officers  or  agents.  Such  representation  would,  however,  neces- 
sarily imply  something  more  than  the  mere  presence  here  of  a  person 
possessing,  when  in  Canada,  the  relation  to  the  company  of  an  officer 
or  agent.     To  involve  the  representation  of  the  company  here,  the 

_si^)jw  s  edjrejjriientatlve^ 

jin  actuaI_present_official  or  representative_status.     He  would  be  re- 
qiiirt^d  to  ba-iierfi  as  alTagent  or~o!!icei^of  the  corporation,  nnd-  not- 
as  an  isolated  individjial'—  If  he  should  drop  the  official  or  represent- 
ative character  at  the  frontier,  if  he  should  bring  that  character  no 
further  than  the  territorial    boundary  of   the  government   to  whose 
laws  the  corporate  body  itself,  and  consequently  the  official  positions 
of    its  officers  also,   would  be  constantly  indebted  for  existence,   it 
could  not,  with  proprietj%  be  maintained  that  he  continued  to  possess 
such  character  by  force  of    our  statute.     Admitting,   therefore,   for 
the  purpose  of  this  suit,  that  in  given  cases  the  foreign  corporation 
would  be  bound  by  service  on  its  treasurer  in  Michigan,  this  could  ^ 
only  be  so  when  the  treasurer,  the  then  official,  the  otHcer  then  in  a  I 
manner  impersonating  the  company,  should  be  served.     Joseph  Price/ 
was  not  here  as  the  treasurer  of  the  defendants.     He  did  not  then 
represent  them.     His  act  in  coming  was  not  the  act  of  the  company, 
nor  was  his  remaining  the  business  or  act  of  any  besides  himself. 
He  had  no  principal,  and  he  was  not  an  agent.     He  had  no  otiieial 
status  or  representative  character  in  this  State."     19  Mich.  oi4. 

I  According  to  the  view  thus  expressed  by  the  Supreme  Court  of/ 
Michigan,  service  upon  an  agent  of  a  foreign  corporation  will  noy 
be  deemed  sufficient,  unless  he  represents  the  corporation  in  th^ 
State.  This  representation  implies  that  the  corporation  does  tusi- 
ness,  or  has  l)usiness,  in  the  State  for  the  transaction  of  whieli  it 
sends  or  appoints  an  agent  there.  If  the  agent  occupies  no  repre- 
sentative character  with  respect  to  the  business  of  the  corporation 
in  tlie  State,  a  judgment  rendered  upon  service  on  liiin  would  hardly 
be  considered  in  other  tribunnls  as  possessing  any  probative  force. 
In  a  case  where  similar  service  was  made  in  New  York  upon  an 
officer  of  a  corporation  of  New  Jersey  accidentally  in  the  f (Miner 
State,  the  Supreme  Court  of  New  Jersey  said,  that  a  law  of  another 


SECT.    II.]  ST.    CLAIR   V.    COX.  169 

State  which  sanctioned  such  service  upon  an  officer  accidentally 
within  its  jurisdiction  was  "so  contrary  to  natural  justice  and  to  the 
principles  of  international  law,  that  the  courts  of  other  States  ought 
not  to  sanction  it."  Moulin  v.  Trenton  Insurance  Co.,  24  N.  J.  L. 
222,  234. 

Without  considering  whether  authorizing  service  of  a  copy  of  a 
writ  of  attachment  as  a  summons  on  some  of  the  persons  named  in 
the  statute — a  member,  for  instance,  of  the  foreign  corporation, 
that  is,  a  mere  stockholder  —  is  not  a  departure  from  the  principle 
of  natural  justice  mentioned  in  Lafayette  Insurance  Co.  v.  French, 
which  forbids  condemnation  without  citation,  it  is  sufficient  to  ob- 
serve that  we  are  of  opinion  that  when  service  is  made  within  the 
State  upon  an  agent  of  a  foreign  corporation,  it  is  essential,  in  order 
to  support  the  jurisdiction  of  the  court  to  render  a  personal  judg- 
ment, that  it  should  appear  somewhere  in  the  record  —  either  in  the 
application  for  the  writ,  or  accompanying  its  service,  or  in  the  plead- 
ings or  the  finding  of  the  court  —  tiial-JJi£-("ov[>orition  T^as_eugaged 
in-business  in  the  State.  The  transaction  of  business  by  the  cor- 
poration in  the  State,  general  or  special,  appearing,  a  certificate  of 
service  by  the  proper  officer  on  a  person  who  is  its  agent  there  would, 
in  our  opinion,  be  sufficient  jJi'i ma  facie  evidence  that  the  agent  rep- 
resented the  company  in  the  business.  It  would  then  be  open,  when 
the  record  is  offered  as  evidence  in  another  State,  to  show  that  the 
agent  stood  in  no  representative  character  to  the  company,  that  his 
duties  were  limited  to  those  of  a  subordinate  employe,  or  to  a  par- 
ticular transaction,  or  that  his  agency  had  ceased  when  the  matter  in 
suit  arose. 

In  the  record,  a  copy  of  which  was  offered  in  evidence  in  this  case, 
there  was  nothing  to  show,  so  far  as  we  can  see,  that  the  Winthrop 
Mining  Company  was  engaged  in  business  in  the  State  when  service 
was  made  on  Colwell.  The  return  of  the  officer,  on  which  alone  reli- 
ance was  placed  to  sustain  the  jurisdiction  of  the  State  court,  gave 
no  information  on  the  subject.  It  did  not,  therefore,  appear  even 
2)rima  facie  that  Colwell  stood  in  any  such  representative  character 
to  the  company  as  would  justify  the  service  of  a  copy  of  the  writ  on 
him.  The  certificate  of  the  sheriff,  in  the  absence  of  this  fact  in  the 
record,  was  insufficient  to  give  the  court  jurisdiction  to  render  a  per- 
sonal judgment  against  the  foreign  corporation.  The  record  was, 
therefore,  properly  excluded.  Judgment  affirmed. 


170  COPIN    V.    ADAMSON.  [CHAP.  III. 


COPIN  V.  ADAMSON. 

Exchequer.     1874. 

[Reported  Law  Reports,  9  Exchequer,  345.] 

Declaration  by  the  assignee  in  bankruptcy  of  the  Societe  de  Com- 
merce de  France,  Limited,  on  a  judgment  for  £151  15s.  recovered  on 
the  7th  of  February,  1867,  in  the  empire  of  France,  by  him  against  the 
defendant  in  the  Court  of  the  Tribunal  of  Commerce  of  the  Department 
of  the  Seine,  being  a  court  duly  holden,  and  having  jurisdiction  in  that 
behalf. 

Plea.  3.  That  the  suit  was  commenced,  according  to  the  French 
law,  b}'  process  and  summons,  and  that  the  defendant  was  not  at  any 
time  previous  to  the  recovery  of  judgment  resident  or  domiciled  within 
the  jurisdiction  of  the  said  court,  nor  is  he  a  native  of  France,  and  he 
was  not  served  with  any  process  or  summons,  nor  did  he  appear,  nor 
had  he  any  notice  or  knowledge  of  any  process  or  summons,  or  any 
opportunity  of  defending  himself. 

Replications.  1.  That  defendant  was  shareholder  in  a  French  com- 
pany, the  articles  of  which  provided  that  every  shareholder  must  elect 
some  domicile  in  Paris,  or  in  default  thereof  would  be  taken  to  be  domi- 
ciled at  the  office  of  an  imperial  procurator,  for  tlie  purpose  of  service 
of  process  in  all  disputes  arising  out  of  the  liquidation  of  the  company 
between  the  shareholders  and  the  company  ;  and  that  such  disputes 
should  be  submitted  to  the  proper  French  court.  That  service  was 
made  accordingly,  as  provided  by  French  law. 

2.  That  the  law  of  France  contained  similar  provisions.- 

Amphlett,  B.  An  important  question  is  raised  on  these  replica- 
tions, involving  the  liability  of  a  British  subject  to  be  sued  in  the  courts 
of  a  foreign  country.  As  to  the  first  replication  demurred  to,  the  court 
is  unanimously  of  opinion  that  the  defendant  is  shown  upon  the  face  of 
it  to  have  contracted  with  the  company,  of  which  he  is  a  shareholder, 
and  whose  representative  the  plaintiff  is,  that  he  would,  under  the  cir- 
cumstances disclosed,  be  amenable  to  the  jurisdiction  of  the  Court  of 
the  Tribunal  of  Commerce  of  the  Department  of  the  Seine.  But  as 
to  the  second  replication,  my  brother  Pigott  and  myself  think  that 
although  the  allegations  are  sufficient  to  show  that  the  defendant's  con- 
tract is  to  be  governed  by  French  law,  still  that  they  do  not  show  that 
he  is  subject  to  the  jurisdiction  of  the  French  court.  The  contract  must 
be  interpreted  by  an  English  tribunal. 

Now,  the  plaintiff  seems  to  have  thought  that  all  he  need  allege  is 
that  French  law  is  to  govern  the  contract.  But  it  by  no  means  fol- 
lows that  the  defendant  has  subjecti'd  himself  to  a  foreign  jurisdiction. 
tThe  cases  which  have  been  referred  to  show  that  before  an  P^nglish- 
man  can  be  made  amenable  to  a  foreign  court,  he  must  bear  either 

1  The  replications,  stated  at  length  by  the  reporter,  arc  here  abridged.  —  Ed. 


SECT.    IL]  COPIN    V.   ADAMSON.  171 

an  absolute  or  a  qualified  or  temporaiT  allegiance  to  the  country  in  } 
which  the  court  is.  He  must,  as  is  pointed  out  by  Blackburn,  J.,  in 
Schibsby  v.  Westenholz,  Law  Rep.  6  Q.  B.  155,  p.  161,  be  a  subject 
of  the  country,  or  as  a  resident  there  when  the  action  was  commenced 
(or  perhaps  it  would  be  enough  if  he  were  there  when  the  obligation 
was  contracted,  though  upon  this  point  doubt  is  expressed),  so  as  to  be 
under  the  protection  of  or  amenable  to  its  laws.  The  learned  judge 
also  puts  two  other  cases  in  which  a  person  might  be  bound,  —  one 
where  he,  as  plaintiff,  has  selected  his  tribunal,  and  the  other  where  he 
has  voluntaril}'  appeared  before  it  and  takes  the  chance  of  a  judgment 
in  his  favor.  The  defendant's  liabilit}'  in  the  latter  case,  however,  is 
left  an  open  question.  But  independentl3'  of  that  question,  I  appre- 
hend that  a  man  may  contract  with  others  that  his  rights  shall  be  de- 
termined not  only  b}'  foreign  law,  but  bj"  a  foreign  tribunal,  and  thus, 
by  reason  of  his  contract,  and  not  of  an}'  allegiance  absolute  or  quali- 
fied, would  become  bound  by  that  tribunal's  decision.  It  is  upon  tliis 
ground  that  I  decide  the  demurrer  to  the  first  replication  in  the  plain- 
tiff's favor.  I  think  that  the  defendant  must  be  taken  to  have  agreed 
that  if  he  did  not  elect  a  domicile  one  should  be  elected  for  him  ;  for 
the  articles  of  association  provide  for  its  being  done.  It  is  said  that  it 
is  not  suflficiently  stated  that  he  had  notice  of  this  particular  provision  ; 
but  I  think  it  must  be  implied  that  he  had  notice,  from  the  fact  of  his 
becoming  a  shareholder  in  the  company*. 

I  now  proceed  to  consider  the 'second  replication,  which  is  silent 
as  to  the  statutes  or  articles  of  association,  but  simply  alleges  that 
according  to  French  law  the  members  of  the  company  were  bound  to 
elect  a  domicile  ;  and  that,  according  to  French  law,  upon  default  a 
domicile  would  be  elected  for  them  at  a  public  office,  where  process 
might  be  served,  and  that  they  would  be  bound  thereb}'.  I  confess  I 
cannot  find  a  case  which  has  gone  so  far  as  to  hold  a  defendant  liable, 
under  such  circumstances,  upon  a  foreign  judgment  obtained,  as  this 
was,  without  an}'  knowledge  on  his  part  of  the  proceedings.  Can  it  be 
said  that  an  Englishman,  for  example,  who  buys  a  share  in  a  foreign 
company  on  the  London  Stock  Exchange,  thereby  becomes  necessarily  . 
bound  by  any  decision  to  which  the  foreign  tribunal  may  come  upon  a 
matter  affecting  his  interests?  Suppose  there  had  been  a  provision  by 
the  law  of  France  that  whenever  a  member  neglected  to  elect  a  domi- 
cile he  should  pay  double  calls,  are  we  to  enforce  his  liability  in  an 
action  on  a  judgment  for  such  calls  obtained  against  him  without  his 
knowledge  in  the  foreign  court?  No  doubt  in  the  present  case,  where 
the  law  of  France  is  in  question,  the  probability  is  that  the  shareholder 
would  not  be  subjected  to  any  extraordinary  or  unjust  liabilities.  But 
if  the  principle  of  law  is  that  which  the  plaintiff  contends  for,  it  must 
be  applied  in  cases  of  countries  where  the  law  might  be  very  much 
more  open  to  objection  than  it  is  likely  to  be  in  a  country  such  as 
France. 

It  is  said,  however,  that  the  authorities  upon  the  point  are  decisive, 


172  COPIN    V.    ADAMSON.  [CHAP.  III. 

and  two  were  especially  relied  on.  The  first  was  the  Bank  of  Austral- 
asia V.  Harding,  9  C.  B.  661,  19  L.  J.  (C.P.)  345  ;  and  it  is,  I  agree, 
a  strong  authority  in  support  of  the  first  replication,  but  not  of  the 
second.  In  that  case  there  liad  been  a  local  act  obtained  giving  power 
to  the  company's  creditors  to  obtain  judgment  against  a  representative 
of  all  the  members,  and  enacting  that  by  that  judgment  all  the  mem- 
bers should  be  bound  ;  and  it  was  upon -the  circumstance  that  the  act 
existed  that  the  judgment  of  the  court  was  founded  ;  and  nothing  falls 
from  any  of  the  judges  to  indicate  that  they  would  have  held  the 
defendant  bound  if  there  had  been  no  such  act.  In  their  opinion  the 
defendant  was  to  be  considered  as  a  consenting  party  to  the  passing  of 
the  act,  or  as  one  of  the  parties  at  whose  request  it  was  passed,  and 
therefore  bound  by  its  provisions.  See  per  Wilde,  C.J.,  and  Cress- 
well,  J.,  pp.  685,  687.  In  the  absence  of  such  consent,  it  seems  to  me 
that  the  court  would  have  come  to  a  contrary  conclusion. 

The  second  case  relied  on  was  Vallee  v.  Dumergue,  4  Ex.  290,  18 
L.  J.  (Ex.)  398  ;  but  here,  again,  although  the  decision  supports  the 
first,  it  fails  to  support  the  second  replication.  There  the  defendant 
had  become  by  transfer  the  owner  of  shares  in  a  French  company  ;  and 
upon  accepting  the  shares  was  bound,  according  to  French  law,  to  elect 
a  domicile.  He  actually  did  so,  and  gave  notice  of  his  election  to  the 
company.  He  was,  therefore,  aware  of  what  the  French  law  was,  and 
had  complied  with  it.  Then,  having  left  the  country,  notice  of  process 
was,  as  here,  left  at  the  elected  domicile,  but  never  reached  the  defend- 
ant against  whom  judgment  by  default  was  recovered.  It  was  held 
he  was  liable  on  the  judgment,  but  upon  the  ground  that  he  had  done 
something  more  than  become  a  shareholder  in  the  company  ;  he  had  so 
conducted  himself  as  to  warrant  the  inference  that  he  had  agreed  to  be 
bound  by  the  decision  of  the  foreign  court.  "  The  replication  consists," 
says  Alderson,  B.  (p.  303)  "  of  a  statement  of  facts  which  show  that 
by  the  agreement  to  which  the  defendant  has  become  a  party,  no  actual 
notice  need  be  given  to  him;"  and,  again  (p.  303),  ''It  is  not  con- 
trary to  natural  justice  that  a  man  who  has  agreed  to  receive  a  partic- 
ular mode  of  notification  of  legal  proceedings  should  be  bound  by  a 
judgment  in  which  that  particular  mode  has  been  followed,  even  though 
he  may  not  have  had  actual  notice  of  them." 

For  these  reasons  my  judgment  (in  wliich  my  brother  Pigott  con- 
curs) is  for  the  plaintiff  upon  the  demurrer  to  the  first  replication,  and 
for  the  defendant  upon  the  demurrer  to  the  second. 

Judgment  accordingly. 

Kelly,  C  B.    [dissenting  on  the  second  replication.! 


SECT.    II.]     G.    AND    B.    SEWING    MACHIK"S    CO.    V.   RADCLIFFE.  113 


GROVER  AND  BAKER   SEWING   MACHINE   CO.   v. 
RADCLIFFE. 

Supreme  Court  of  the  United  States.     1890. 
[Reported  137  United  States,  287.] 

Error  to  the  Court  of  Appeals  of  the  State  of  Maryland. 

This  was  an  action  brought  in  the  Circuit  Court  of  Cecil  County, 
Maryland,  by  the  Grover  and  Baker  Sewing  Machine  Company 
against  James  and  John  Benge,  citizens  of  Delaware,  by  summons 
and  attachment  served  on  William  P.  Radcliffe  as  garnishee.  The 
suit  was  upon  a  judgment  for  the  sum  of  three  thousand  dollars, 
entered  by  the  prothonotary  of  the  Court  of  Common  Pleas  in  and 
for  the  county  of  Chester,  Pennsylvania,  against  James  and  John 
Benge  (who  were  not  citizens  or  residents  of  Pennsylvania  and  were 
not  served  with  process)  upon  a  bond  signed  by  them,  giving  author- 
ity to  "any  attorney  of  any  court  of  record  in  the  State  of  New  York 
or  auy  other  State  "  to  confess  judgment  against  them  for  the  amount 
of  the  bond.  The  law  of  Pennsylvania  authorized  the  prothonotary 
of  any  court  to  enter  judgment  upon  such  a  bond.^ 

Fuller,  C.  J.  The  Maryland  Circuit  Court  arrived  at  its  conclu- 
sion upon  the  ground  that  the  statute  of  Pennsylvania  relied  on  did 
not  authorize  the  prothonotary  of  the  Court  of  Common  Pleas  of  that 
State  to  enter  the  judgment;  and  the  Court  of  Appeals  of  Maryland 
reached  the  same  result  upon  the  ground  that  the  judgment  was  void 
as  against  John  Benge,  because  the  court  rendering  it  had  acquired 
no  jurisdiction  over  his  person. 

It  is  settled  that  notwithstanding  the  provision  of  the  Constitution 
of  the  United  States,  which  declares  that  "full  faith  and  credit  shall 
be  given  in  each  State  to  the  public  acts,  records,  and  judicial  pro- 
ceedings of  every  other  State,"  Art.  IV.,  section  I,  and  the  acts  of 
Congress  passed  in  pursuance  thereof,  1  Stat.  22,  Rev.  Stat.  §  905 
—  and  notwithstanding  the  averments  in  the  record  of  the  judgment 
itself,  the  jurisdiction  of  the  court  by  which  a  judgment  is  rendered 
in  any  State  may  be  questioned  in  a  collateral  proceeding;  that  the 
jurisdiction  of  a  foreign  court  over  the  person  or  the  subject-matter, 
embraced  in  the  judgment  or  decree  of  such  court,  is  always  open  to 
inquiry;  that,  in  this  respect,  a  court  of  another  State  is  to  be 
regarded  as  a  foreign  court;  and  that  a  personal  judgment  is  without 
validity  if  rendered  by  a  State  court  in  an  action  upon  a  money 
demand  against  a  non-resident  of  the  State,  upon  whom  no  personal 
service  of  process  within  the  State  w^as  made,  and  who  did  not 
appear.  D'Arcy  ?'.  Ketchum,  11  How.  165;  Thompson  v.  Whitman, 
18  Wall.  457;  Hall  v.  Lanning,  91  U.  S.  160;  Pennoyer  v.  Neff, 
95  U.   S.  714. 

1  This  statement  is  abridged  from  the  statement  of  Fuller,  C.  J.  —  Ed. 


174  G.    AND   B.    SEWING   MACHINE   CO.    V.    KADCLIFFE.      [CHAP.  III. 

The  rule  is  not  otherwise  in  the  State  of  Pennsylvania,  where  the 
judgment  in  question  was  rendered ;  Guthrie  v.  Lowry,  84  Penu.  St. 
533;  Scott  v.  Noble,  72  Penn.  St.  115;  Noble  v.  Thompson  Oil  Co., 
79  Penn.  St.  354;  Steel  v.  Smith,  7  W.  &  S.  447;  nor  in  the  State 
of  Maryland,  where  the  action  under  review  was  brought  upon  it; 
Bank  of  the  United  States  v.  Merchants'  Bank,  7  Gill,  415;  Clark 
V.  Bryan,  16  Maryland,  171;  Weaver  v.  Boggs,  38  Maryland,  255. 
And  the  distinction  between  the  validity  of  a  judgment  rendered  in 
one  State,  under  its  local  laws  upon  the  subject,  and  its  validity  in 
another  State,  is  recognized  by  the  highest  tribunals  of  each  of  these 
States. 

Thus  in  Steel  v.  Smith,  7  W.  &  S.  447,  it  was  decided,  in  1844, 
that  a  judgment  of  a  court  of  another  State  does  not  bind  the  person 
of  the  defendant,  in  another  jurisdiction,  though  it  might  do  so 
under  the  laws  of  the  State  in  which  the  action  was  brought,  and 
that  the  act  of  Congress  does  not  preclude  inquiry  into  the  jurisdic- 
tion, or  the  right  of  the  State  to  confer  it.  The  action  was  brought 
on  a  judgment  rendered  in  Louisiana,  and  Mr.  Chief  Justice  Gibson, 
in  delivering  the  opinion  of  the  court,  said:  "The  record  shows  that 
there  was  service  on  one  of  the  joint  owners,  which,  in  the  estima- 
tion of  the  law  of  the  court,  is  service  on  all ;  for  it  is  affirmed  in 
Hill  V.  Bowman,  already  quoted  [14  La.  445],  that  the  State  of 
Louisiana  holds  all  persons  amenable  to  the  process  of  her  courts, 
whether  citizens  or  aliens,  and  whether  present  or  absent.  It  was 
ruled  in  George  v.  Fitzgerald,  12  La.  604,  that  a  defendant,  though 
he  reside  in  another  State,  having  neither  domicile,  interest  nor 
agent  in  Louisiana,  and  having  never  been  within  its  territorial 
limits,  may  yet  be  sued  in  its  courts  by  the  instrumentality  of  a 
curator  appointed  by  the  court  to  represent  and  defend  him.  All 
this  is  clear  enough,  as  well  as  that  there  was  in  this  instance  a 
general  appearance  by  attorney,  and  a  judgment  against  all  the 
defendants,  which  would  have  full  faith  and  credit  given  to  it  in 
the  courts  of  the  State.  But  that  a  judgment  is  always  regular  when 
there  has  been  an  appearance  by  attorney,  with  or  without  warrant, 
and  that  it  cannot  be  impeached  collaterally,  for  anything  but  fraud 
or  collusion,  is  a  municipal  principle,  and  not  an  international  one 
having  place  in  a  question  of  State  jurisdiction  or  sovereignty. 
Now,  though  the  courts  of  Louisiana  would  enforce  this  judgment 
against  the  persons  of  the  defendants,  if  found  within  reach  of  their 
process,  yet.  where  there  is  an  attempt  to  enforce  it  by  the  process 
of  another  State,  it  behooves  the  court  whose  assistance  is  invoked 
to  look  narrowly  into  the  constitutional  injunction,  and  give  the 
statute  to  carry  it  out  a  reasonable  interpretation."     pp.  449,  450. 

Referring  to  §  1307  of  Mr.  Justice  Story's  Commentaries  on  the 
Constitution,  and  the  cases  cited,  to  which  he  added  Benton  v. 
Burgot,  10  S.  &  R.  240,  the  learned  Judge  inquired;  "What,  then, 
is  the  right  of  a  State  to  exercise  authority  over  the  persons  of  those 


SECT.    II.]     G.    AND    B.    SEWING   MACHINE    CO.    V.    RADCLIFFE.  175 

who  belong  to  another  jurisdiction,  and  who  have  perhaps  not  been 
out  of  the  boundaries  of  it?"  (p.  450)  and  quoted  from  Vattel, 
Burge,  and  from  Mr.  Justice  Story  (Conflict  of  Laws,  c.  14,  §  539), 
that  '"no  sovereignty  can  extend  its  process  beyond  its  own  territo- 
rial limits,  to  subject  other  persons  or  property  to  its  judicial  deci- 
sions. Every  exertion  of  authority  beyond  these  limits  is  a  mere 
nullity,  and  incapable  of  binding  such  persons  or  property  in  other 
tribunals,'"  and  thus  continued:  "Such  is  the  familiar,  reasonable, 
and  just  principle  of  the  law  of  nations;  and  it  is  scarce  supposable 
that  the  framers  of  the  Constitution  designed  to  abrogate  it  between 
States  which  were  to  remain  as  independent  of  each  other,  for  all  but 
national  purposes,  as  they  were  before  the  revolution.  Certainly  it 
was  not  intended  to  legitimate  an  assumption  of  extraterritorial 
jurisdiction  which  would  confound  all  distinctive  principles  of  sepa- 
rate sovereignty;  and  there  evidently  was  such  an  assumption  in  the 
proceedings  under  consideration.  .  .  .  But  I  would  perhaps  do  the 
jurisprudence  of  Louisiana  injustice,  did  I  treat  its  cognizance  of 
the  defendants  as  an  act  of  usurpation.  It  makes  no  claim  to  extra- 
territorial authority,  but  merely  concludes  the  party  in  its  own 
courts,  and  leaves  the  rest  to  the  Constitution  as  carried  out  by  the 
act  of  Congress.  "When,  however,  a  creditor  asks  us  to  give  such  a 
judgment  what  is  in  truth  an  extraterritorial  effect,  he  asks  us  to  do 
what  we  will  not,  till  we  are  compelled  by  a  mandate  of  the  court  in 
the  last  resort."     p.  45 L 

In  Weaver  v.  Boggs,  38  Maryland,  255,  it  was  held  that  suit  could 
not  be  maintained  in  the  courts  of  Mai-ylaud  upon  a  judgment  of  a 
court  of  Pennsylvania  rendered  upon  returns  of  niht'l  to  two  succes- 
sive writs  of  scire  facias  issued  to  revive  a  Pennsylvania  judgment 
of  more  than  twenty  years'  standing,  where  the  defendant  had  for 
more  than  twenty  years  next  before  the  issuing  of  the  writs  resided 
in  Maryland  and  out  of  the  jurisdiction  of  the  court  that  rendered 
the  judgment.  (^The  court  said:  "It  is  well  settled  that  a  judgment 
obtained  in  a  court  of  one  State  cannot  be  enforced  in  the  courts  and 
against  a  citizen  of  another,  unless  the  court  rendering  the  judgment 
has  acquired  jurisdiction  over  the  defendant  by  actual  service  of 
process  upon  him,  or  by  his  voluntary  appearance  to  the  suit  and 
submission  to  that  jurisdiction.  Such  a  judgment  may  be  perfectly 
valid  in  the  jurisdiction  where  rendered  and  enforced  there  even 
against  the  property,  effects,  and  credits,  of  a  non-resident  defendant 
there  situated ;  but  it  cannot  be  enforced  or  made  the  foundation  of 
an  action  in  another  State.^  A  law  which  substitutes  constructive 
for  actual  notice  is  binding  upon  persons  domiciled  within  the  State 
where  such  law  prevails,  and  as  respects  the  property  of  others  there 
situated,  but  can  bind  neither  person  nor  property  beyond  its  limits. 
This  rule  is  based  upon  international  law,  and  upon  that  natural 
protection  which  every  country  owes  to  its  own  citizens.  It  con- 
cedes the  jurisdiction  of  the  court  to  the  extent  of  the  State  where 


176  G.    AND    B.    SEWING    MACHINE    CO.    V.    KADCLIFFE.      [CHAP.  III. 

the  judgment  is  rendered,  but  upon  the  principle  that  it  would  be 
unjust  t'o  its  own  citizens  to  give  effect  to  the  judgments  of  a  foreign 
tribunal  against  them  when  they  had  no  opportunity  of  being  heard, 
its  validity  is  denied." 

Publicists  concur  that  domicile  generally  determines  the  particular 
territorial  jurisprudence  to  which  every  individual  is  subjected.  As 
correctly  said  by  Mr.  Wharton,  the  nationality  of  our  citizens  is  that 
of  the  United  States,  and  by  the  laws  of  the  United  States  they  are 
bound  in  all  matters  in  which  the  United  States  are  sovereign ;  but 
in  other  matters,  their  domicile  is  in  the  particular  State,  and  that 
determines  the  applicatory  territorial  jurisprudence.  A  foreign  judg- 
ment is  impeachable  for  want  of  personal  service  within  the  juris- 
diction of  the  defendant,  this  being  internationally  essential  to 
jurisdiction  in  all  cases  in  which  the  defendant  is  not  a  subject  of 
the  State  entering  judgment;  and  it  is  competent  for  a  defendant  in 
an  action  on  a  judgment  of  a  sister  State,  as  in  an  action  on  a  for- 
eign judgment,  to  set  up  as  a  defence,  want  of  jurisdiction,  in  that 
he°was  not  an  inhabitant  of  the  State  rendering  the  judgment  and 
had  not  been  served  with  process,  and  did  not  enter  his  appearance. 
Whart.  Conflict  Laws,  §§  32,  654,  660;  Story,  Conflict  Laws,  §§  539, 

540,  586. 

John  Benge  was  a  citizen  of  Maryland  when  he  executed  this  obli- 
gation. The  subject-matter  of  the  suit  against  him  in  Pennsylvania 
was  merely  the  determination  of  his  personal  liability,  and  it  was 
necessary  to  the  validity  of  the  judgment,  at  least  elsewhere,  that  it 
should  appear  from  the  record  that  he  had  been  brought  within  the 
jurisdiction  of  the  Pennsylvania  court  by  service  of  process,  or  his 
voluntary  appearance,  or  that  he  had  in  some  manner  authorized  the 
proceeding.  By  the  bond  in  question  he  authorized  "any  attorney 
of  any  court  of  record  in  the  State  of  New  York,  or  any  other  State, 
to  confess  judgment  against  him  (us)  for  the  said  sum,  with  release 
of  errors,  etc."  But  the  record  did  not  show,  nor  is  it  contended, 
that  he  was  served  with  process,  or  voluntarily  appeared,  or  that 
judgment  was  confessed  by  an  attorney  of  any  court  of  record  of 
Pennsylvania.  Upon  its  face,  then,  the  judgment  was  invalid,  and 
to  be  treated  as  such  when  offered  in  evidence  in  the  Maryland  court. 

It  is  said,  however,  that  the  judgment  was  entered  against  Benge 
by  a  prothonotary,  and  that  the  prothonotary  had  power  to  do  this 
under  the  statute  of  Pennsylvania  of  February  24,  1806.  Laws  of 
Pcnn.  1H05-6,  p.  347.  This  statute  was  proved  as  a  fact  upon  the 
trial  in  ^Maryland,  and  may  be  assumed  to  have  authorized  the  action 
taken,  though  under  Connay  v.  Ilalstead,  73  Penn.  St.  354,  that 
may,  perhaps,  be  doubtful.  And  it  is  argued  that  the  statute,  being 
in  force  at  the  time  this  instrument  was  executed,  should  be  read 
into  it  and  considered  as  forming  a  part  of  it,  and  therefore  that 
John  Benge  had  consented  tliat  judgment  miglit  be  thus  entered 
up  against  him  without  service  of  process,  or  appearance  in  person, 
or  by  attorney. 


SECT.  II.]  FITZSIMMONS   V.    JOHNSON.  177 

But  we  do  not  think  that  a  citizen  of  another  State  than  Pennsyl- 
vania can  be  thus  presumptively  held  to  knowledge  and  acceptance 
of  particular  statutes  of  the  latter  State.  What  Benge  authorized 
was  a  confession  of  judgment  by  any  attorney  of  any  court  of  record 
in  the  State  of  New  York  or  any  other  State,  and  he  had  a  right  to 
insist  upon  the  letter  of  the  authority  conferred.  By  its  terms  he 
did  not  consent  to  be  bound  by  the  local  laws  of  every  State  in  the 
Union  relating  to  the  rendition  of  judgment  against  their  own  citi- 
zens without  service  or  appearance,  but  on  the  contrary  made  such 
appearance  a  condition  of  judgment.  And  even  if  judgment  could 
have  been  entered  against  him,  not  being  served  and  not  appearing, 
in  each  of  the  States  of  the  Union,  in  accordance  with  the  laws 
therein  existing  upon  the  subject,  he  could  not  be  held  liable  upon 
such  judgment  in  any  other  State  than  that  in  which  it  was  so 
rendered,  contrary  to  the  laws  and  policy  of  such  State. 

The  courts  of  Maryland  were  not  bound  to  hold  this  judgment  as 
obligatory  either  on  the  ground  of  comity  or  of  duty,  thereby  per- 
mitting the  law  of  another  State  to  override  their  own. 

No  color  to  any  other  view  is  given  by  our  decisions  in  Johnson  v. 
Chicago  &  Pacific  Elevator  Co.,  119  U.  S.  388,  400,  and  Hopkins  v. 
Orr,  124  U.  S.  510,  cited  for  plaintiff  in  error.  Those  cases  in- 
volved the  rendition  of  judgments  against  sureties  on  restitution  and 
appeal  bonds  if  judgment  went  against  their  principals,  and  the 
sureties  signed  with  reference  to  the  particular  statute  under  which 
each  bond  was  given;  nor  did,  nor  could,  any  such  question  arise 
therein  as  that  presented  in  the  case  at  bar. 

Judgment  affirmed.^ 


FITZSIMMONS  v.   JOHNSON. 

Supreme  Court  of  Tennessee.    1891. 

{Reported  90  Tennessee,  416.] 

Caldwell,  J.^  .John  W.  Todd  died,  testate,  at  his  residence  in 
Clermont  County,  Ohio,  in  the  early  part  of  the  year  1864.  He 
nominated  his  friends,  John  Johnson  and  C.  W.  Goyer,  of  Memphis, 
Tennessee,  as  executors  of  his  will.  They  accepted  the  trust,  went 
to  Ohio,  and,  on  April  27,  1864,  were  duly  qualified  by  the  Probatt 
Court  of  Clermont  County  as  executors  of  the  will. 

1  See  First  Nat.  Bank  v.  Cunningham,  48  Fed.  510  ;  Snyder  v.  Critchfield.  44 
Neb.  66,  62  N,  W.  306  ;  Teel  v.  Yost,  128  X.  Y.  387. 

On  consent  as  a  ground  of  jurisdiction  of  the  person,  see  "Wright  v.  Boynton,  37 
N.  H.  9  ;  McCormicky.  R.  R.,   49  N.  Y.  303.  —  Ed. 

2  Only  so  much  of  the  opinion  as  deals  with  the  question  of  jurisdiction  is  here 
given.  —  Ed.  2  ^ 


178  FITZSIMMONS    V.   JOHNSON.  [CHAP.  III. 

On  November  6,  1865,  the  executors  made  what  purported  to  be  a 
final  settlement  of  the  estate  of  their  testator,  showing  that  they  had 
received  assets  to  the  amount  of  S63,495.25,  and  that,  of  this,  they 
had  paid  to  the  widow  of  the  testator,  as  sole  distributee,  $61,040.10, 
and  that  the  other  §2,455.15  had  been  used  in  the  payment  of  debts 
and  expenses  of  administration.  This  settlement  was  made  in  the 
Probate  Court  of  Clermont  County,  Ohio,  on  whose  record  the  follow- 
ing entry  was  made:  "This  day  the  court  examined  the  accounts 
and  vouchers  of  C.  W.  Goyer  and  John  Johnson,  executors  of  the 
estate  of  John  W.  Todd,  deceased,  and  found  the  same  to  be  in  all 
things  correct;  that  they  have  been  regularly  advertised  for  excep- 
tions, and  none  having  been  filed  thereto,  the  same  are  hereby 
approved  and  confirmed.  And  the  court  finds  that  said  executors 
have  paid  all  just  claims  against  said  estate,  and  have  distributed 
the  remainder  according  to  the  will  of  the  testator.  And  the  said 
accounts  are  ordered  to  be  recorded,  and  the  executors  are  discharged." 
The  testator  left  no  children  or  representatives  of  children.  By 
the  first  ten  clauses  of  his  will  he  expressed  certain  desires,  which 
need  not  be  mentioned  in  this  opinion,  and  made  provision  for  his 
widow;  and  by  the  eleventh  clause  he  devised  and  bequeathed  the 
residuum  of  his  estate,  both  real  and  personal,  to  his  four  sisters  and 
one  brother.  The  provision  made  Tor  the  widow  proved  unsatisfac- 
tory to  her;  hence,  she  failed  to  accept  it.  And  her  non-acceptance 
had  the  same  legal  effect  under  the  Ohio  law  that  an  affirmative 
disseut  has  under  our  law.  She  had  the  same  claims  upon  her  hus- 
band's estate  as  she  would  have  had  if  he  had  died  intestate. 

The  executors  assumed  that  she  was  entitled  to  the  whole  of  his 
persona!  estate  after  the  payment  of  debts  and  expenses,  and  upon 
that  assumption  they  paid  her  the  §61,040.10. 

Such  had  been  the  statute  law  of  Ohio,  but  it  was  changed,  so  as 
to  allow  the  widow  only  one-third  of  her  husband's  net  personal 
estate,  a  few  years  before  the  final  settlement. 

On  January  15,  1887,  Mary  A.  Fitzsimmons,  one  of  the  residuary 
legatees,  filed  her  petition  in  error,  in  the  Court  of  Common  Pleas  of 
Clermont  County,  Ohio,  for  the  purpose  of  having  the  judgment  of 
the  Probate  Court  reviewed  and  reversed.  Goyer  having  died  in  the 
meantime,  Johnson  alone,  as  surviving  executor,  was  made  defend- 
ant to  this  petition.  The  petition  was  accompanied  with  an  affi- 
davit that  Johnson  was  a  non-resident  of  the  State  of  Ohio,  and 
could  not,  therefore,  be  personally  served  with  summons,  that  he  had 
no  attorney  of  record  in  the  State,  and  that  it  was  a  proper  case  for 
publication.  Tiiereupon  pu1)lication  was  made  for  Johnson,  as  a 
non-resident,  requiring  him  to  appear  and  i)lead  to  the  petition;  and 
a  copy  of  a  newspaper  containing  the  published  notice  was  sent  to 
him  at  his  residence  in  Memphis,  Tennessee. 

Johnson  made  default,  and  on  January  20,  1888,  the  petition  in 
error  was  heard  in  the  Court  of  Common  Pleas,  and  the  judgment  of 


?!ECT.  II.]  FITZSIMMOXS   V.   JOHNSON.  179 

the  Probate  Court  was  reversed  and  set  aside,  and  the  cause  was 
remauded  to  the  Probate  Court  for  further  proceedings.  After  the 
remand,  Mrs.  Fitzsimmons  and  Mrs.  Young,  another  of  the  residu- 
ary legatees,  appeared  in  the  Probate  Court  and  filed  exceptions  to 
the  accounts  of  Goyer  and  Johnson,  which  had  been  confirmed  by 
that  court  in  1865.  These  exceptions  were  set  for  hearing,  and  a 
copy  thereof,  together  with  a  notice  of  the  time  and  place  of  hearing 
the  same  by  the  court,  was  mailed  to  Johnson  at  Memphis. 

Johnson  again  failed  to  appear.  The  exceptions  were  sustained, 
and,  on  February  2,  1888,  the  Probate  Court  adjudged  that  the  exec- 
utors had  been  improperly  credited  in  the  former  settlement  with 
the  861,040.10  paid  the  widow,  and  that  they  had  received  $30,000 
besides,  which  they  had  not  reported  or  accounted  for  in  any  way. 
The  court  further  adjudged  that  these  two  sums,  together  with  inter- 
est thereon,  in  all  §130,640,  remained,  or  should  be,  in  the  hands 
of  the  executors  for  distribution;  and  it  was  ordered  that  Johnson, 
as  surviving  executor,  proceed  to  distribute  said  sum  of  8130,640 
according  to  the  will  of  John  W.  Todd,  deceased,  and  according  to 
law. 

That  judgment  is  the  principal  ground  of  the  present  action.  On 
March  28,  1888,  Mrs.  Fitzsimmons  and  the  other  four  residuary 
legatees,  by  themselves  and  their  representatives,  filed  this  bill  in 
the  Chancery  Court  at  Memphis,  to  recover  from  Johnson,  as  surviv- 
ing executor,  and  from  the  estate  of  Goyer,  the  deceased  executor, 
the  said  $130,640,  and  other  sums  alleged  to  have  been  received  by 
the  same  persons  as  executors  of  John  W.  Todd's  estate  in  Tennessee. 

The  chancellor  dismissed  the  bill  on  demurrer,  so  far  as  relief 
was  sought  on  the  Ohio  record,  but  retained  it  for  other  purposes,  to 
be  hereafter  stated.  After  final  decree  on  the  merits  of  the  other 
branch  of  the  cause,  both  complainants  and  defendants  appealed  to 
this  court.  All  material  questions  raised  in  the  Chancery  Court  are 
presented  here  by  assignments  of  error. 

Was  that  part  of  the  bill  seeking  relief  on  the  judgment  of  the 
Probate  Court  in  Ohio  properly  dismissed? 

The  main  ground  of  demurrer  to  that  part  of  the  bill  was  want  of 
jurisdiction  in  that  court  to  pronounce  the  judgment. 

The  question  of  the  court's  jurisdiction  of  the  subject-matter  need 
not  be  discussed  or  elaborated,  for,  by  the  statute  of  Ohio,  her  Pro- 
bate Courts  are  given  general  jurisdiction  to  settle  the  accounts  of 
executors  and  administrators,  and  to  direct  distribution  of  balance 
found  in  their  hands.  Jurisdiction  of  the  subject-matter  was,  there- 
fore, ample  and  complete.     Rev.  Stat.  Ohio,  sect.  534. 

Whether  the  court  had  jurisdiction  of  the  person  of  Johnson  is 
not  so  easily  answered. 

It  is  conceded  in  the  bill  and  recited  on  the  face  of  the  record  that 
Goyer  was  dead,  and  that  Johnson,  the  surviving  executor,  was  not 
personally  served  with  notice,  either  of  the  appellate  proceedings  in 


180  FITZSIMMONS    V.   JOHNSON.  [CHAP.  III. 

the  Court  of  Common  Pleas  or  of  the  subsequent  proceedings  iii  the 
Probate  Court,  which  resulted  in  the  judgment  sued  on;  and  that, 
being  a  non-resident,  and  without  an  attorney  of  record  in  the  State, 
only  publication  was  made  for  him. 

It  is  now  well  settled  that  a  personal  judgment  against  a  non- 
resident, rendei-ed  in  an  original  suit,  upon  constructive  notice  — 
that  is,  upon  notice  by  publication  merely  —  is  an  absolute  nullity, 
and  of  no  effect  whatever.  Though  a  State  may  adopt  any  rules  of 
practice  and  legal  procedure  she  may  deem  best  as  to  her  own  citi- 
zens, she  can  adopt  none  that  will  give  her  courts  jurisdiction  of 
non-residents  so  as  to  authorize  personal  judgments  against  them 
without  personal  service  of  process  upon  them. 

By  personal  judgments  we  mean  judgments  m  persotKmi  —  as,  for 
payment  of  money  —  in  contradistinction  from  judgments  iti  rem, 
whereby  the  property  of  non-residents,  situated  within  the  territorial 
limits  of  the  State,  may  be  impounded;  for  when  non-residents  own 
property  in  a  particular  State  it  is  subject  to  the  laws  of  that  State, 
and  may  be  attached  or  otherwise  brought  into  custodia  legis  as 
security  for  the  debts  of  the  owners,  and  actually  sold  and  applied 
by  direction  of  the  court,  without  personal  service  and  by  construc- 
tive notice  merely.     Pennoyer  v.  Neff,  95  U.  S.  714. 

The  judgment  before  us  is  confessedly  a  personal  judgment. 
Hence,  if  the  appellate  proceedings  in  the  Court  of  Common  Pleas 
and  the  subsequent  proceedings  in  the  Probate  Court  were  original 
proceedings,  standing  upon  the  same  ground  with  respect  to  notice 
as  an  original  action,  that  judgment  is  void  for  want  of  jurisdiction 
of  the  person. 

The  demurrer  assumed,  and,  in  sustaining  it,  the  chancellor  held, 
that  the  petition  in  error,  by  which  the  cause  Avas  removed  from  the 
Probate  Court  to  the  Court  of  Common  Pleas,  was,  in  effect,  an 
original  action,  and  that  it  could  be  prosecuted  only  on  notice  by 
personal  service;  and  that,  it  appearing  that  no  such  notice  was 
given,  the  judgment  sued  upon  was  null  and  void. 

We  do  not  concur  in  the  view  that  the  petition  in  error  was  a  new 
suit,  or,  that  to  entitle  petitioner  to  prosecute  the  same,  she  must 
have  given  the  defendant  therein  the  same  notice  required  in  the 
commencement  of  an  original  action.  In  saying  this,  we  are  not 
unmindful  of  the  fact  that  many  of  the  authorities  speak  of  a  writ 
of  error,  whose  office  seems  to  be  the  same  in  most  of  the  States  as 
the  petition  in  error  under  the  Ohio  law,  as  a  new  suit.  Such  is  the 
language  of  some  of  the  earlier  decisions  in  Ohio.  3  Ohio,  337. 
In  some  of  the  cases  in  our  own  State  a  writ  of  error  has  been  called 
a  new  suit  (1  Lea,  290;  13  Lea,  151);  in  others  it  is  said  to  be  in 
the  nature  of  a  new  suit  (6  Lea,  83;  13  Lea,  206);  and  in  still 
another  the  court  says  it  is  to  be  regarded  as  a  new  suit.  3  Head, 
25.  But  in  no  case  that  we  have  been  able  to  find,  or  to  which  our 
attention  has  been  called,  does  the  court  decide  that  a  writ  of  error 


SECT.  II.]  FITZSIMMONS   V.    JOHNSON.  181 

is  a  new  suit  in  the  sense  of  being  the  commencement  of  an  original 
action,  or  that  it  requires  the  same  character  and  stringency  of  notice 
as  an  original  action. 

In  the  very  nature  of  the  case  a  writ  of  error  cannot  be  an  original 
action.  A  writ  of  error  lies  alone  in  behalf  of  a  party  or  privy  to  an 
original  suit  already  finally  determined  in  the  lower  court,  and  it 
must  run  against  another  party  or  privy  to  such  original  suit,  A 
writ  of  error  has  no  place  in  the  law  unless  there  has  been  an  origi- 
nal action;  and,  where  given  scope,  it  is  but  a  suit  on  the  record  in 
the  original  case. 

The  Supreme  Court  of  the  United  States  has  several  times  said 
that  a  writ  of  error  is  rather  a  continuation  of  a  certain  litigation 
than  the  commencement  of  an  original  action,  and  we  think  that  such 
it  is,  most  manifestly.  Cohens  v.  Virginia,  6  Wheaton,  410;  Clark 
V.  Matthewson,  12  Peters,  170;  Nations  v.  Johnson,  24  Howard,  205; 
Pennoyer  v.  Neff,  95  U.  S.,  734. 

A  writ  of  error  is  like  a  new  suit,  in  that  it  can  be  prosecuted  only 
upon  notice  to  the  opposite  party.  But  that  notice  need  not  be  per- 
sonal, as  in  the  commencement  of  an  original  action;  it  may  be 
either  personal  or  constructive,  as  the  State  creating  the  tribunal  may 
provide.     95  U.  S.,  734;  24  Howard,  206. 

In  1865  Goyer  and  Johnson  submitted  themselves  to  the  jurisdic- 
tion of  the  Probate  Court  of  Ohio,  for  the  purpose  of  settling  their 
accounts,  and  then  obtained  a  judgment  in  their  favor.  That  judg- 
ment was  subject  to  review,  and,  if  erroneous,  to  reversal,  by  error 
proceedings  in  the  Court  of  Common  Pleas.  Rev.  Stat.  Ohio,  sect. 
6708. 

To  obtain  such  revision  or  reversal,  it  was  incumbent  on  the  com- 
plaining party  to  give  Goyer  and  Johnson,  or  the  survivor  of  them, 
notice.  Such  notice  was,  by  statute,  authorized  to  be  given  in  any 
one  of  three  ways  —  namel}^,  by  service  of  summons  on  the  adverse 
party  in  person,  or  by  service  on  his  attorney  of  record,  or  by  publi- 
cation.    Rev.  Stat.,  6718. 

Goyer  being  dead,  and  Johnson  being  a  non-resident,  and  having 
no  attorney  in  the  State,  publication  was  duly  made  at  the  instance 
of  petitioner  in  error.  That  was  all  that  was  required  by  the  law  of 
Ohio,  and  we  are  of  opinion  that  it  gave  the  Appellate  Court  full 
jurisdiction  of  Johnson's  person,  and  authorized  any  judgment  that 
the  merits  of  the  case  required,  so  far  as  he  was  concerned. 

That  court  had  complete  power  to  reverse  the  judgment  of  the 
Probate  Court,  if  found  to  be  erroneous,  and  either  to  render  such 
judgment  as  should  have  been  rendered  below  in  the  first  instance  or 
to  remand  the  case  for  further  proceedings  in  the  latter  court.  Rev. 
Stat.,  6726. 

The  latter  course  was  pursued,  as  has  already  been  seen.  John- 
son, being  properly  before  the  Appellate  Court  by  constructive  ser- 
vice, was  chargeable  with  notice  of  the  reversal  and  remand  of  his 


182  FITZSIMMOXS   V.    JOHNSON.  [CHAP.  III. 

case,  and  of  the  subsequent  proceedings  in  the  Probate  Court,  with- 
out additional  notice  by  publication  or  otherwise  as  to  the  steps 
taken  under  the  j^rocedendo.  In  that  way  he  had  his  day  in  court 
when  the  large  judgment  was  pronounced  against  him,  and  he  is 
bound  by  it  the  same  as  if  he  had  been  personally  served  with 
process.. 

ThatAoustructive  notice  of  a  writ  of  error  to  a  non-resident  party, 
when  ^ch  party  was  properly  brought  before  the  lower  court,  is 
sufficient  to  bind  him  by  the  judgment  Ir  decree  rendered  in  the 
Appellate  Court,  was  expressly  decided^n  the  case  of  Nations  v. 
Johnson,  24  Howard,  195.  In  that  case' Johnson  had  sued  Nations 
in  the  Chancery  Court  in  Mississippi  for  some  slaves.  Decree  was 
for  Nations,  and  he  afterward  removed  himself  and  the  slaves  to  the 
State  of  Texas.  Johnson  prosecuted  a  writ  of  error  to  the  Appellate 
Court  of  Mississippi,  giving  to  Nations  notice  by  publication  only. 
The  Appellate  Court  reversed  the  decree  of  the  chancellor  and  pro- 
nounced a  decree  in  favor  of  Johnson. 

Subsequently  Johnson  sued  Nations  in  one  of  the  District  Courts 
of  the  United  States,  in  the  State  of  Texas,  on  his  decree  rendered 
by  the  State  Court  in  Mississippi.  Nations  defended  on  the  ground 
that  he  had  not  been  personally  served  with  notice  of  the  writ  of 
error  to  the  Appellate  Court.  That  question  being  decided  against 
him,  not  upon  the  facts  but  upon  the  law,  in  the  District  Court, 
Nations  prosecuted  a  writ  of  error  to  the  Supreme  Court  of  the 
United  States,  with  the  result  already  stated.  In  the  opinion,  Mr. 
Justice  Clifford,  speaking  for  a  unanimous  court,  said:  "No  rule 
can  be  a  sound  one  which,  by  its  legitimate  operation,  will  deprive  a 
party  of  his  right  to  have  his  case  submitted  to  the  Appellate  Court; 
and  where,  as  in  this  case,  personal  service  was  impossible  in  the. 
Appellate  Court,  through  the  act  of  the  defendant  in  error,  it  must 
be  held  that  publication  according  to  the  law  of  the  jurisdiction, 
is  constructive  notice  to  the  party,  provided  the  record  shows  that 
process  was  duly  served  in  the  subordinate  court,  and  that  the  party 
appeared  and  litigated  the  merits.  .  .  .  Common  justice  requires 
that  a  party,  in  cases  of  this  description,  should  have  some  mode  of 
giving  notice  to  his  adversary;  and  where,  as  in  this  case,  the  record 
shows  that  the  defendant  appeared  in  the  subordinate  court  and 
litigated  the  merits  to  a  final  judgment,  it  cannot  be  admitted  that 
he  can  defeat  an  appeal  by  removing  from  the  jurisdiction,  so  as 
to  render  personal  service  of  the  citation  impossible.  On  that  state 
of  facts,  service  by  publication  according  to  the  law  of  the  jurisdic- 
tion and  the  i)raetice  of  the  court,  we  think,  is  free  from  objection, 
and  is  amjjly  sutlicient  to  sunport  the  judgment  of  the  Appellate 
Court."     24  Howard,   205,   20b. 

The  same  rule  is  announced  in  Pennoyer  v.  Neff,  95  U.  S.  734. 
Text-writtis  lay  it  down  as  a  general  n^le  that  jurisdiction  once 
.cquired  over  the  parties  iu  the  lower  cowl  may  be  continued  until 


L 


SECT.  II.]  MASSIE    V.    WATTS.  183 

the  final  termination  of  the  controversy  in  the  Appellate  Court  by 
giving  proper  notice  of  the  appellate  proceedings,  and  that  notice  to 
a  non-resident  party  by  publication  merely  is  sufficient.  Freeman  on 
Judgments,  sect.  569;  2  Black  on  Judgments,  sect.  912.  • 

This  rule  commends  itself  to  all  men  for  its  wisdom  and  justice. 
If  it  did  not  prevail,  a  man  having  an  unjust  judgment  in  a  subordi- 
nate court,  might,  by  removal  from  that  State,  cut  off,  absolutely, 
the  right  of  the  adverse  party  to  a  hearing  in  the  Appellate  Court  on 
writ  of  error:  and,  having  done  so,  he  might  then  enforce  his  unjust 
judgment.  The  adverse  party  would  be  powerless  in  such  a  case. 
He  could  get  relief  neither  in  the  courts  of  the  State  in  which  the 
judgment  was  rendered,  nor  in  those  of  the  State  to  which  the  other 
party  had  removed;  for,  in  the  former  jurisdiction,  the  judgment 
would  be  conclusive  upon  him,  and  if  he  should  go  to  the  latter  to 
relitigate  his  rights,  he  would  be  met  and  defeated  by  the  previous 
adjudication  of  the  same  rights.  One  judgment  would  control  the 
other,  on  the  doctrine  that  the  judgment  of  a  competent  court  in  one 
State  is  entitled  to  the  same  faith  and  credit  in  the  courts  of  every 
other  State  as  it  would  receive  in  those  of  the  State  where  rendered ; 
which  doctrine  will  be  considered  hereafter. 


MASSIE  V.   WATTS. 

Supreme  Court  of  the  United  States.     1810. 

[Reported  6  Cranch,  148.] 

This  was  an  appeal  from  the  decree  of  the  Circuit  Court  of  the 
United  States  for  the  District  of  Kentucky,  in  a  suit  in  equity 
brought  by  Watts,  a  citizen  of  Virginia,  against  Massie,  a  citizen  of 
Kentucky,  to  compel  the  latter  to  convey  to  the  former  1,000  acres  of 
land  in  the  State  of  Ohio,  the  defendant  having  obtained  the  legal 
title  with  notice  of  the  plaintiff's  equitable  title. 

Marshall,  C.  J.  This  suit  having  been  originally  instituted,  in 
the  court  of  Kentucky,  for  the  purpose  of  obtaining  a  conveyance 
for  lands  lying  in  the  State  of  Ohio,  an  objection  is  made  by  the 
plaintiff  in  error,  who  was  the  defendant  below,  to  the  jurisdiction 
of  the  court  by  which  the  decree  was  rendered. 

Taking  into  view  the  character  of  the  suit  in  chancery  brought  to 
establish  a  prior  title  originating  under  the  laud  law  of  Virginia 
against  a  person  claiming  under  a  senior  patent,  considering  it  as 
a  substitute  for  a  caveat  introduced  by  the  peculiar  circumstances 
attending  those  titles,  this  court  is  of  opinion,  that  there  is  much 
reason  for  considering  it  as  a  local  action,  and  for  confining  it  to 
the  court  sitting  within  the  State  in  which  the  lands  lie.  Was  this 
cause,  therefore,  to  be  considered  as  involving  a  naked  question  of 


184  MASSIE    V.    WATTS.  [CHAP.  III. 

title,  was  it,  for  example,  a  contest  between  Watts  and  Powell,  the 
jurisdiction  of  the  Circuit  Court  of  Kentucky  would  not  be  sus- 
tained. But  where  the  question  changes  its  character,  where  the 
defendant  in  the  original  action  is  liable  to  the  plaintiff,  either  in 
consequence  of  contract,  or  as  trustee,  or  as  the  holder  of  a  legal 
title  acquired  by  any  species  of  mala  fides  practised  on  the  plaintiff, 
the  principles  of  equity  give  a  court  jurisdiction  wherever  the  person 
may  be  found,  and  the  circumstance,  that  a  question  of  title  may  be 
involved  in  the  inquii'y,  and  may  even  constitute  the  essential  point 
on  which  the  case  depends,  does  not  seem  sufficient  to  arrest  that 
jurisdiction. 

In  the  celebrated  case  of  Penn  v.  Lord  Baltimore,  the  Chancellor 
of  England  decreed  a  specific  performance  of  a  contract  respecting 
lands  lying  in  North  America.  The  objection  to  the  jurisdiction  of 
the  court,  in  that  case,  as  reported  by  Vezey,  was  not  that  the  lands 
lay  without  the  jurisdiction  of  the  court,  but  that,  in  cases  relating 
to  boundaries  between  provinces,  the  jurisdiction  was  exclusively  in 
the  king  and  council.  It  is  in  reference  to  this  objection,  not  to  an 
objection  that  the  lands  were  without  his  jurisdiction,  that  the  chan- 
cellor says,  "This  court,  therefore,  has  no  original  jurisdiction  on 
the  direct  question  of  the  original  right  of  boundaries."  The  reason 
why  it  had  no  original  jurisdiction  on  this  direct  question  was,  that 
the  decision  on  the  extent  of  those  grants,  including  dominion  and 
political  power,  as  well  as  property,  was  exclusively  reserved  to  the 
king  in  council. 

In  a  subsequent  part  of  the  opinion,  where  he  treats  of  the  objec- 
tion to  the  jurisdiction  of  the  court,  arising  from  its  inability  to 
enforce  its  decree  in  rem,  he  allows  no  weight  to  that  argument. 
The  strict  primary  decree  of  a  court  of  equity  is,  he  says,  in  />er- 
sonam,  and  may  be  enforced  in  all  cases  where  the  person  is  within 
its  jurisdiction.  In  confirmation  of  this  position  he  cites  the  prac- 
tice of  the  courts  to  decree  respecting  lands  lying  in  Ireland  and  in 
the  colonies,  if  the  person  against  whom  the  decree  was  prayed  be 
found  in  England. 

In  the  case  of  Arglasse  v.  Muschamp,  1  Vernon,  75,  the  defend- 
ant, residing  in  England,  having  fraudulently  obtained  a  rent  charge 
on  lands  lying  in  Ireland,  a  bill  was  brought  in  England  to  set  it 
aside.  To  an  objection  made  to  the  jurisdiction  of  the  court  the 
chancellor  replied:  "This  is  surely  only  a  jest  put  upon  th«  jurisdic- 
tion of  this  court  by  the  common  lawyers;  for  when  you  go  about  to 
bind  the  lands  and  grant  a  sequestration  to  execute  a  decree,  then 
they  readily  tell  you  that  the  authority  of  this  court  is  only  to  regu- 
late a  man's  conscience,  and  ought  not  to  affect  the  estate,  but  that 
this  court  must  agere  in  personam  only;  and  when,  as  in  this  case, 
you  prosecute  the  person  for  a  fraud,  they  tell  you  that  you  must  not 
intermeddle  here,  because  the  fraud,  though  committed  here,  con- 
cerns lands  that  lie  in  Ireland,  which  makes  the  jurisdiction  local. 


SECT.  II.]  MASSIE    V.    WATTS.  185 

and  so  wholly  elude  the  jurisdiction  of  this  court."  The  chancellor, 
in  that  case,  sustained  his  jurisdiction  on  principle,  and  on  the 
authority  of  Archer  and  Preston,  in  which  case  a  contract  made 
respecting  lands  in  Ireland,  the  title  to  which  depended  on  the  act 
of  settlement,  was  enforced  in  England,  although  the  defendant  was 
a  resident  of  Ireland,  and  had  ouly  made  a  casual  visit  to  England. 
On  a  rehearing  before  Lord  Keeper  North  this  decree  was  affirmed. 

In  the  case  of  The  Earl  of  Kildare  i\  Sir  Morrice  Eustace  and 
Fitzgerald,  1  Vern.  419,  it  was  determined  that  if  the  trustee  live  in 
England,  the  chancellor  may  enforce  the  trust,  although  the  lands  lie 
in  Ireland. 

In  the  case  of  Toller  v.  Carteret,  2  Vern.  494,  a  bill  was  sustained 
for  the  foreclosure  of  a  mortgage  of  lauds  lying  out  of  the  jurisdic- 
tion of  the  court,  the  person  of  the  mortgagor  being  within  it. 

Subsequent  to  these  decisions  was  the  case  of  Penn  against  Lord 
Baltimoi'e,  1  Vez.  444,  in  which  the  specific  performance  of  a  con- 
tract for  lands  lying  in  North  America  was  decreed  in  England. 

Upon  the  authority  of  these  cases,  and  of  others  which  are  to  be 
found  in  the  books,  as  well  as  upon  general  principles,  this  court  is 
of  opinion  that,  in  a  case  of  fraud,  of  trust,  or  of  contract,  the  juris- 
diction of  a  court  of  chancery  is  sustainable  wherever  the  person  be 
found,  although  lands  not  within  the  jurisdiction  of  that  court  may 
be  affected  by  the  decree. 

The  inquiry,  therefore,  will  be,  whether  this  be  an  unmixed  ques- 
tion of  title,  or  a  case  of  fraud,  trust,  or  contract. 

The  facts  in  this  case,  so  far  as  they  affect  the  question  of  juris- 
diction, are,  that,  in  1787,  the  land  warrant,  of  which  Watts  is  now 
the  proprietor,  and  which  then  belonged  to  Oneal,  was  placed  with- 
out any  special  contract  in  the  hands  of  Massie,  as  a  common  locator 
of  lands.  In  the  month  of  August  in  the  same  year  he  located  1,000 
acres,  part  of  this  warrant,  to  adjoin  a  previous  location  made  on 
the  same  day  for  Robert  Powell. 

In  the  year  1793  Massie,  as  deputy-surveyor,  surveyed  the  lands 
of  Thomas  Massie,  on  which  Robert  Powell's  entry  depended,  and 
the  land  of  Robert  Powell,  on  which  Oneal's  entry,  now  the  property 
of  Watts,  depended.  On  the  27th  of  June,  1795,  Nathaniel  Massie, 
the  plaintiff  in  error,  entered  for  himself  2,366  acres  of  land  to 
adjoin  the  surveys  made  for  Robert  Powell,  Thomas  Massie,  and  one 
Daniel  Stull.  The  entry  of  Daniel  Stull  commences  at  the  upper 
corner  of  Ferdinand  Oneal's  entry  on  the  Scioto,  and  the  entry  of 
Ferdinand  Oneal  commences  at  the  upper  corner  of  Robert  Powell's 
entry  on  the  Scioto;  so  that  the  land  of  Oneal  would  be  supposed, 
from  the  entries,  to  occupy  the  space  on  the  Scioto  between  Powell 
and  Stull.  Nathaniel  Massie's  entry,  which  was  made  after  survey- 
ing the  lands  of  Thomas  Massie  and  of  Robert  Powell,  binds  on  the 
Scioto,  and  occupies  the  whole  space  between  Powell's  survey  and 
StuU's  survey. 


186  MASSIE    V.    WATTS.  [CHAP.  III. 

In  the  year  1796,  Nathaniel  Massie  surveyed  530  acres  of  Oneal's 
entry,  chiefly  within  StuU's  survey,  and  afterwards,  in  the  spring  of 
1797,  purchased  Powell's  survey.  Nathaniel  Massie' s  entry  is  sur- 
veyed and  patented.  In  1801  Massie  received  from  Watts,  in  money, 
the  customary  compensation  for  making  his  location. 

It  is  alleged  that  Nathaniel  Massie  has  acquired  for  himself  the 
land  which  was  comprehended  within  Oneal's  entry,  and  has  sur- 
veyed for  Oneal  land  to  which  his  entry  can  by  no  construction  be 
extended. 

If  this  allegation  be  unsupported  by  evidence,  there  is  an  end  of 
the  case.  If  it  be  supported,  had  the  court  of  Kentucky  jurisdiction 
of  the  cause? 

Although  no  express  contract  be  made,  yet  it  cannot  be  doubted 
that  the  law  implies  a  contract  between  every  man  who  transacts 
business  for  another  at  the  request  of  that  other  and  the  person  for 
whom  it  is  transacted.  A  common  locator  who  undertakes  to  locate 
lands  for  an  absent  person  is  bound  to  perform  the  usual  duties  of 
a  locator,  and  is  entitled  to  the  customary  compensation  for  those 
duties.  If  he  fails  in  the  performance  of  those  duties,  he  is  liable  to 
the  action  of  the  injured  party,  which  may  be  instituted  wherever  hi8 
person  is  found.  If  his  compensation  be  refused,  he  may  sue  there- 
for in  any  court  within  whose  jurisdiction  the  person  for  whom  the 
location  was  made  can  be  found.  In  either  action  the  manner  in 
which  the  service  was  performed  is  inevitably  the  subject  of  investi- 
gation, and  the  difficulty  of  making  it  cannot  oust  the  court  of  its 
jurisdiction. 

From  the  nature  of  the  business  and  the  situation  of  the  parties, 
the  person  for  whom  the  location  is  made  being  generally  a  non- 
resident, and  almost  universally  unacquainted  with  the  country  in 
which  his  land  is  placed,  it  is  the  duty  of  the  locator  not  only  to 
locate  the  lands,  but  to  show  them  to  the  surveyor.  He  also  neces- 
sarily possesses  the  power  to  amend  or  to  change  the  location  if 
he  has  sufficient  reason  to  believe  that  it  is  for  the  interest  of  his 
employer  so  to  do.  So  far  as  respects  the  location  he  is  substituted 
in  the  place  of  the  owner,  and  his  acts  done  bo7ia  fide  are  the  acts  of 
the  owner. 

If,  under  these  circumstances,  a  locator  finding  that  the  entry  he 
has  made  cannot  be  surveyed,  instead  of  withdrawing  it  or  amend- 
ing it  so  as  to  render  it  susceptible  of  being  carried  into  execution, 
secures  the  adjoining  land  for  himself,  and  shows  other  land  to  the 
surveyor  whicli  the  location  cannot  be  construed  to  comprehend,  it 
appears  to  this  court  to  be  a  breach  of  duty,  which  amounts  to  a 
violation  of  the  implied  contract,  and  subjects  him  to  the  action  of 
the  party  injured. 

If  the  location  be  sustainable,  and  the  locator,  instead  of  showing 
the  land  really  covered  by  the  entry,  shows  other  land,  and  appro- 
priates to  himself  the  land  actually  entered,  this  appears  to  the  court 


SECT.  II.]  WHITE    V.    AVHITE.  187 

to  be  a  species  of  mala  fides  which  will,  in  equity,  convert  him  into 
a  trustee  for  the  party  originally  entitled  to  the  land. 

la  either  case  the  jurisdiction  of  the  court  of  the  State  in  which 
the  person  is  found  is  sustainable. 

If  we  reason  by  analogy  from  the  distinction  between  actions  local 
and  transitory  at  common  law,  this  action  would  follow  the  person, 
because  it  Avould  be  founded  on  an  implied  contract,  or  on  neglect  of 
duty. 

If  we  reason  from  those  principles  which  are  laid  down  in  the 
books  relative  to  the  jurisdiction  of  courts  of  equity,  the  jurisdiction 
of  the  court  of  Kentucky  is  equally  sustainable,  because  the  defend- 
ant, if  liable,  is  either  liable  under  his  contract,  or  as  trustee.^ 


WHITE  V.    WHITE. 

Court  of  Appeals,  Maryland.     1835. 

[Reported  7  Gill  ^  Johnson,  208.] 

Buchanan,  C.  J.  The  bill  in  this  case  was  filed  for  the  sale  of  the 
real  estate  of  Abraham  White,  deceased,  and  the  distribution  of  the 
proceeds  among  his  heirs,  after  deducting  the  amount  of  a  subsisting 
lien,  by  mortgage,  on  a  part  of  it;  on  the  ground  that  it  will  not  admit 
of  an  advantageous  division,  and  that  it  would  be  to  the  advantage 
of  all  the  parties  interested,  that  it  should  be  sold,  which  is  admitted 
by  the  answers.  A  tract  of  laud,  part  of  this  estate,  is  stated  in  the 
bill,  to  lie  in  the  State  of  Pennsylvania,  as  to  which  the  chancellor 
dismissed  the  bill  for  the  want  of  jurisdiction,  and  decreed  a  sale  of 
that  portion  of  the  property,  which  lies  in  this  State,  appointing  a 
trustee  for  that  purpose.  And  the  only  question  is,  whether  he 
should  not  also  have  decreed  a  sale  by  the  trustee,  of  the  tract  of 
land  in  Pennsylvania. 

It  would  be  rather  an  idle  thing  in  chancery,  to  entertain  jurisdic- 
tion of  a  matter  not  within  its  reach,  and  make  a  decree  which  it 
could  have  no  power  to  enforce,  or  to  compel  a  compliance  with. 
And  the  absence  of  that  very  power  is  a  good  test  by  which  to  try 
the  question  of  jurisdiction.  It  would  be  a  solecism  to  say,  that  the 
chancellor  has  jurisdiction  to  decree  in  rem,  where  the  thing  against 

1  Ace.  Penn  v.  Lord  Baltiaiore,  1  "Ves.  Sr.  444  ;  McGee  v.  Sweeney,  Si  Cal. 
100,  23  Pac.  1117  ;  Cloud  v.  Greasley,  125  111.  313,  17  N.  E.  826  ;  Reed  r.  Reed,  75 
Me.  264  ;  Brown  v.  Desmond,  100  Mass.  267  ;  Vreeland  v.  Vreeland,  49  N.  J.  Eq. 
322,  24  Atl.  551  ;  Gardner  v.  Ogden,  22  N.  Y.  327  ;  Guerrant  v.  Fowler,  1  Hen.  k  M. 
5  ;  Poindexter  v.  Burwell,  82  Va.  507. 

So  a  court  of  equity  has  jurisdiction  to  enjoin  the  conveyance  of  foreign  land: 
Frank  v.  Peyton,  82  Ky.  150  ;  and  to  enjoin  the  obstruction  of  a  foreign  private  way: 
Alexander  v.  Tolleston  Club,  110  111.  65.  —  Ed. 


188  WHITE   V.   WHITE.  [CHAP.  III. 

which  the  decree  goes,  and  is  alone  the  subject  of,  and  to  be  operated 
upon  by  it,  is  beyond  the  territorial  jurisdiction  of  the  Chancery 
Court,  and  not  subject  to  its  authority,  and  the  decree,  if  passed, 
would  itself  be  nugatory  for  the  want  of  power,  or  jurisdiction  to 
give  it  effect.  Chancery  can  have  no  jurisdiction  where  it  can  give 
no  relief.  Now  what  jurisdiction  has  the  Chancery  Court  of  Mary- 
land over  lands  lying  in  a  foreign  country,  or  in  another  State;  and 
having  no  jurisdiction  of  lands  so  situated,  what  authority  has  it  to 
decree  a  sale  of  them,  and  impart  to  its  trustee  authority  to  go  into 
such  State,  or  foreign  country,  to  carry  its  decree  into  effect,  by 
making  sale  of  them. 

It  is  true  that  where  the  decree  sought  is  m  i)ersonavi^  and  may  be 
carried  into  effect  by  process  of  contempt,  the  Court  of  Chancery 
here  may  have  jurisdiction,  although  it  may  affect  land  lying  in 
another  State,  the  defendant  being  in  the  State  of  Maryland,  as  in 
a  case  of  trust,  or  fraud,  or  of  contract.  As  where  a  bill  is  filed 
against  a  person  in  this  State,  for  the  specific  performance  of  a  con- 
tract, or  agreement,  relating  to  land  in  another  State.  In  such  a 
case,  the  decree  does  not  act  directly  upon  the  land,  but  upon  the 
defendant  here,  and  within  the  jurisdiction  of  the  court.  So  where 
the  land  itself  that  is  sought  to  be  affected  lies  within  the  State,  and 
the  proceedings  are  against  a  person  residing  out  of  the  State. 

But  in  this  case  the  bill  seeks  a  sale  of  land  in  Pennsylvania,  not 
within  the  jurisdiction  of  the  Court  of  Chancery  of  Maryland;  and 
the  decree  if  made  would  not  be  in  'personam^  but  for  the  sale  of  the 
land,  through  the  instrumentality  of  a  trustee,  and  could  not  be 
enforced  by  any  process  from  that  court.  It  is  not  like  the  case  of 
Penn  r.  Lord  Baltimore,  1  Ves.  Sr.  444,  where  the  bill  was  for  the 
specific  performance  or'  articles  concerning  the  bound^iries  of  the  then 
provinces  of  Maryland  and  Pennsylvania,  Lord  Baltimore  the  de- 
fendant being  in  England,  and  subject  to  the  compulsory  process  of 
chancery  there.  Nor  like  the  other  cases  to  be  found  in  the  English 
Chancery  reports,  affecting  lands  not  lying  in  England,  where  the 
proceedings  were  in  personam,  tiie  defendants  residing  there,  and 
subject  to  process  of  contempt,   etc. 

Decree  affirmed  u'ith  costs.  ^ 

1  Ace.  Watkins  v.  Holman,  16  Pet.  25;  Johnson  v.  Kimbro,  3  Head,  557  ;  Gibson 
V.  Burgess,  82  Va.  650.  But  see  Dunlap  v.  Byers,  110  Mich.  109,  67  N.  W.  1067  ; 
Wood')'.  Warner,  15  N.  J.  Eq.  81. 

Similarly,  a  court  of  ecjuity  may  not  order  the  abatement  of  a  foreign  nuisance: 
P.  V.  Central  R.  R.,  42  N.  Y.  283  ;  nor  grant  specific  ptjrformance  of  a  contract  to  dig 
a  ditch  in  a  foreign  state  :  Port  Royal  R.  R.  v.  Hammond,  58  Ga.  523  ;  nor  declare  a 
deed  of  foreign  land  void:  Carpenter  v.  Strange,  141  U.  S.  87  ;  Davis  v.  Headlcy,  22 
N.  "J.  Eq.  115 ;  but  see  C.  v.  Levy,  23  Grat.  21.  —  Ed. 


SECT.   III.J  PENNOYEK   V.   NEFF.  189 


SECTION  III. 

JURISDICTION   QUASI   IN   REM. 


PENNOYER  V.  NEFF. 

Supreme  Court  of  the  United  States.     1878. 

{Reported  95  United  States,  714.] 

Field,  J.^  This  is  an  action  to  recover  the  possession  of  a  tract  of 
land,  of  the  alleged  value  of  $15,000,  situated  in  the  State  of  Oregon. 
The  plaintiff  asserts  title  to  the  premises  by  a  patent  of  the  United 
States  issued  to  him  in  1866,  under  the  act  of  Congress  of  September 
27,  1850,  usually  known  as  the  Donation  Law  of  Oregon.  The  defend- 
ant claims  to  have  acquired  the  premises  under  a  sheriffs  deed,  made 
upon  a  sale  of  the  property  on  execution  issued  upon  a  judgment  re- 
covered against  the  plaintiff  in  one  of  the  circuit  courts  of  the  State. 
The  case  turns  upon  the  validity  of  this  judgment. 

It  appears  from  the  record  that  the  judgment  was  rendered  in  Feb- 
ruary, 1866,  in  favor  of  J.  H.  Mitchell,  for  less  than  $300,  including 
costs,  in  an  action  brought  by  him  upon  a  demand  for  services  as  an 
attorney  ;  that,  at  the  time  the  action  was  commenced  and  the  judgment 
rendered,  the  defendant  therein,  the  plaintiff  here,  was  a  non-resident 
of  the  State ;  that  he  was  not  personally  served  with  process,  and  did 
not  appear  therein  ;  and  that  the  judgment  was  entered  upon  his  de- 
fault in  not  answering  the  complaint,  upon  a  constructive  service  of 
summons  by  publication. 

The  Code  of  Oregon  provides  for  such  service  when  an  action  is 
brought  against  a  non-resident  and  absent  defendant  who  has  property 
within  the  State.  It  also  provides,  whei'e  the  action  is  for  the  recovery 
of  money  or  damages,  for  the  attachment  of  the  property  of  the  non- 
resident. And  it  also  declares  that  no  natural  person  is  subject  to  the 
jurisdiction  of  a  court  of  the  State,  "  unless  he  appear  in  the  court,  or 
be  found  witliin  the  State,  or  be  a  resident  thereof,  or  have  property 
therein,  and  in  the  last  case  only  to  the  extent  of  such  property  at  the 
time  the  jurisdiction  attached."  Construing  this  latter  provision  to 
mean,  that  in  an  action  for  mone}'  or  damages  whex'e  a  defendant  does 
not  appear  in  the  court,  and  is  not  found  within  the  State,  and  is  not  a 
resident  thereof,  but  has  property  therein,  the  jurisdiction  of  the  court 
extends  only  over  such  property,  the  declaration  expresses  a  principle 
of  general,  if  not  universal,  law.  Tlie  authority  of  every  tribunal  is 
necessarily  restricted  bv  the  territorial  limits  of  the  State  in  which  it  is 

^  Arguments  of  counsel  and  part  of  the  dissenting  opinion  are  omitted.  —  Ed. 


190  PENNOYER  V.    NEFF.  [CHAP.  HI. 

established.  An}-  attempt  to  exercise  autliority  be3'ond  those  limits 
would  be  deemed  in  every  other  forum,  as  has  been  said  by  this  court, 
an  illegitimate  assumption  of  power,  and  be  resisted  as  mere  abuse. 
D'Arey  v.  Ketchum  et  al.,  11  How.  165.  In  the  case  against  the  plain-^ 
tiff,  the  property-  here  in  controversy  sold  under  the  judgment  rendered' 
was  not  attached,  nor  in  any  wa}'  brought  under  the  jurisdiction  of  the 
court.  Its  first  connection  with  the  case  was  caused  by  a  levy  of  the 
execution.  It  was  not,  therefore,  disposed  of  pursuant  to  any  adjudi- 
cation, but  only  in  enforcement  of  a  personal  judgment,  having  no  rela- 
tion to  the  property,  rendered  against  a  non-resident  without  service  of 
process  upon  him  in  the  action,  or  his  appearance  therein.  The  court 
below  did  not  consider  that  an  attachment  of  the  property  was  essential 
to  its  jurisdiction  or  to  the  validity  of  the  sale,  but  held  that  the  judg- 
ment was  invalid  from  defects  in  the  affidavit  upon  which  the  order  of 
publication  was  obtained,  and  in  the  affidavit  by  which  the  publication 
was  proved. 

There  is  some  difference  of  opinion  among  the  members  of  this  court 
as  to  the  rulings  upon  these  alleged  defects.  The  majority  are  of 
opinion  that  inasmuch  as  the  statute  requires,  for  an  order  of  publica- 
tion, that  certain  facts  shall  appear  by  affidavit  to  the  satisfaction  of 
the  court  or  judge,  defects  in  such  affidavit  can  onl}'  be  taken  advan- 
tage of  on  appeal,  or  by  some  other  direct  proceeding,  and  cannot 
be  urged  to  impeach  the  judgment  collaterally.  The  majority  of  the 
court  are  also  of  opinion  that  the  provision  of  the  statute  requiring 
proof  of  the  publication  in  a  newspaper  to  be  made  by  the  "  affidavit 
of  the  printer,  or  his  foreman,  or  his  principal  clerk,"  is  satisfied  when 
the  affidavit  is  made  by  the  editor  of  the  paper.  The  term  "  printer," 
in  their  judgment,  is  there  used  not  to  indicate  the  person  who  sets  up 
the  type  —  he  does  not  usually  have  a  foreman  or  clerks ;  it  is  rather 
used  as  synonymous  with  publisher.  The  Supreme  Court  of  New  York 
so  held  in  one  case,  —  observing  that,  for  the  purpose  of  making  the 
required  proof,  publishers  were  "  within  the  spirit  of  the  statute." 
Bunce  v.  Reed,  16  Barb.  (N.  Y.)  350.  And,  following  this  ruling,  the 
Supreme  Court  of  California  held  that  an  affidavit  made  by  a  "pub- 
lisher and  proprietor"  was  sufficient.  Sharp  v.  Daugney,  33  Cal.  512. 
The  term  "editor,"  as  used  when  the  statute  of  New  York  was  passed, 
from  which  the  Oregon  law  is  borrowed,  usually  included  not  only  the 
person  who  wrote  or  selected  the  articles  for  publication,  but  the  person 
who  published  the  paper  and  put  it  into  circulation.  Webster,  in  an 
early  edition  of  his  Dictionary,  gives  as  one  of  the  definitions  of  an 
editor,  a  person  "who  superintends  the  publication  of  a  newspaper." 
It  is  principally  since  that  time  that  the  business  of  an  editor  has  been 
separated  from  that  of  a  publisher  and  printer,  and  has  become  an 
independent  profession. 

If,  therefore,  we  were  confined  to  the  rulings  of  the  court  below  upon 
the  defects  in  tlie  affidavits  mentioned,  we  should  be  unable  to  uphold 
its  decision.     But  it  was  also  contended  in  that  court,  and  is  insisted 


SECT.    III.]  PENNOYER   V.   NEFF.  191 

upon  here,  that  the  judgment  in  the  State  court  against  the  plaintiff 
was  void  for  want  of  personal  service  of  process  on  him,  or  of  his  ap- 
pearance in  the  action  in  which  it  was  rendered,  and  that  the  premises 
in  controversy  could  not  be  subjected  to  the  payment  of  the  demand  of 
ja  resident  creditor  except  by  a  proceeding  in  rem;  that  is,  by  a  direct 
proceeding  against  the  property  for  that  purpose.  If  these  positions 
are  sound,  the  ruling  of  the  Circuit  Court  as  to  the  invalidity  of  that 
judgment  must  be  sustained,  notwithstanding  our  dissent  from  the 
reasons  upon  which  it  was  made.  And  that  they  are  sound  would  seem 
to  follow  from  two  well-established  principles  of  public  law  respecting 
the  jurisdiction  of  an  independent  State  over  persons  and  property. 
The  several  States  of  the  Union  are  not,  it  is  true,  in  every  respect 
independent,  many  of  the  rights  and  powers  which  originally  belonged 
to  them  being  now  vested  in  the  government  created  by  the  Consti- 
tution. But,  except  as  restrained  and  limited  b}'  that  instrument,  the}' 
possess  and  exercise  the  authorit}'  of  independent  States,  and  the  prin- 
ciples of  public  law  to  which  we  have  referred  are  applicable  to  them. 
One  of  these  principles  is,  that  ever}'  State  possesses  exclusive  juris- 
diction and  sovereignty  over  persons  and  property  within  its  territor}'. 
As  a  consequence  ever}"  State  has  the  power  to  determine  for  itself  the 
civil  status  and  capacities  of  its  inhabitants ;  to  prescribe  the  subjects 
upon  which  they  may  contract,  the  forms  and  solemnities  with  which 
their  contracts  shall  be  executed,  the  rights  and  obligations  arising 
from  them,  and  the  mode  in  which  their  validit}'  shall  be  determined 
and  their  obligations  enforced  ;  and  also  to  regulate  the  manner  and 
conditions  upon  which  property  situated  within  such  territory,  both 
personal  and  real,  may  be  acquired,  enjoyed,  and  transferred.  The 
other  principle  of  public  law  referred  to  follows  from  the  one  men- 
tioned ;  that  is,  that  no  State  can  exercise  direct  jurisdiction  and  au- 
thority over  persons  or  property  without  its  territor3%  Stor}',  Confl. 
Laws,  c.  2  ;  Wheat.  Int.  Law,  pt.  2,  c.  2.  The  several  States  are  of 
equal  dignity  and  r.uthorit}-,  and  the  independence  of  one  implies  the 
exclusion  of  power  from  all  others.  And  so  it  is  laid  down  by  jurists 
as  an  elementary  principle  that  the  laws  of  one  State  have  no  operation 
outside  of  its  territory  except  so  far  as  is  allowed  b}'  comity  ;  and  that 
no  tribunal  established  by  it  can  extend  its  process  beyond  that  terri- 
tory so  as  to  subject  either  persons  or  propert}"  to  its  decisions.  "  Any 
exertion  of  authorit}-  of  this  sort  beyond  this  limit,"  says  Stor}",  "  is  a 
mere  nullit}^  and  incapable  of  binding  such  persons  or  property  in  any 
other  tribunals."     Stor}-,  Confl.  Laws,  sect.  539. 

But  as  contracts  made  in  one  State  may  be  enforceable  onl}'  in  an- 
other State,  and  property  may  be  held  by  non-residents,  the  exercise  of 
the  jurisdiction  which  every  State  is  admitted  to  possess  over  persons 
and  property  within  its  own  territor}'  will  often  affect  persons  and 
property  without  it.  To  any  influence  exerted  in  this  way  by  a  State 
affecting  persons  resident  or  property  situated  elsewhere,  no  objection 
can  be  justly  taken  ;  whilst  any  direct  exertion  of  authority  upon  them, 


192  PENMOYER   V.    NEFF.  [CHAP.    IIL 

in  an  attempt  to  give  exterritorial  operation  to  its  laws,  or  to  enforce 
an  exterritorial  jurisdiction  by  its  tribunals,  would  be  deemed  an  en- 
oroacliment  upon  the  independence  of  the  State  in  which  the  persons 
are  domiciled  or  the  property  is  situated,  and  be  resisted  as  usurpation. 

Thus  the  State,  through  its  tribunals,  may  compel  persons  domiciled 
within  its  limits  to  execute,  in  pursuance  of  their  contracts  respecting 
property  elsewhere  situated,  instruments  in  such  form  and  with  such 
solemnities  as  to  transfer  the  title,  so  far  as  such  formalities  can  be 
complied  with  ;  and  the  exercise  of  this  jurisdiction  in  no  manner  in- 
terferes with  the  supreme  control  over  the  property  b}'  the  State  within 
which  it  is  situated.  Penn  v.  Lord  Baltimore,  1  Ves.  444;  Massie  v. 
Watts,  6  Cranch,  148;  Watkins  v.  Holman,  16  Pet.  25;  Corbett  v. 
Nutt,  10  Wall.  464. 

So  the  State,  through  its  tribunals,  may  subject  property  situated 
within  its  limits  owned  b}'  non-residents  to  the  payment  of  the  demand 
of  its  own  citizens  against  them  ;  and  the  exercise  of  this  jurisdiction 
in  no  respect  infringes  upon  the  sovereignty  of  the  State  where  the 
owners  are  domiciled.  Ever}-  State  owes  protection  to  its  own  citizens  ; 
and  when  non-residents  deal  with  them,  it  is  a  legitimate  and  just  exer- 
cise of  authorit}'  to  hold  and  appropriate  an}-  property  owned  by  such 
non-residents  to  satisfy  the  claims  of  its  citizens.  It  is  in  virtue  of  the 
State's  jurisdiction  over  the  property  of  the  non-resident  situated  within 
its  limits  that  its  tribunals  can  inquire  into  that  non-resident's  obliga- 
tions to  its  own  citizens,  and  the  inquiry  can  then  be  carried  onl}'  to 
the  extent  necessary  to  control  the  disposition  of  the  property.  If  the 
non-resident  have  no  property-  in  the  State,  there  is  nothing  upon  which 
the  tribunals  can  adjudicate. 

These  views  are  not  new.  They  have  been  frequently  expressed, 
with  more  or  less  distinctness,  in  opinions  of  eminent  judges,  and  have 
been  carried  into  adjudications  in  numerous  cases.  Thus,  in  Picquet  v. 
Swan,  5  ^Vlason,  35,  Mr.  Justice  Story  said  :  — 

"  Where  a  party  is  within  a  territory,  he  may  justly  be  subjected  to 
its  process,  and  bound  personally  by  the  judgment  pronounced  on  such 
process  against  him.  Where  he  is  not  within  such  territory,  and  is  not 
personally  subject  to  its  laws,  if,  on  account  of  his  supposed  or  actual 
pro[)erty  being  within  the  territory-,  process  by  the  local  laws  may,  by 
attachment,  go  to  compel  his  appearance,  and  for  his  default  to  appear 
judgment  ma}'  be  pronounced  against  him,  such  a  judgment  must,  upon 
general  principles,  be  deemed  only  to  bind  him  to  the  extent  of  such 
property,  and  cannot  have  the  effect  of  a  conclusive  judgment  in  per- 
sonam^ for  the  plain  reason  that,  except  so  far  as  the  property  is  con- 
cerned, it  is  a  judgment  coram  non  jialice" 

And  in  BoswcU's  Lessee  v.  Otis,  9  How.  336,  where  the  title  of  the 
plaintiff  in  ejectment  was  acquired  on  a  slieriff's  sale,  under  a  monc}' 
decree  rendered  upon  publication  of  notice  against  non-residents,  in  a 
suit  bought  to  enforce  a  contract  relating  to  land,  Mr.  Justice  McLean 
said :  — 


SECT.    III.]  PENXOYER   V.   NEFF.  193 

"  Jurisdiction  is  acquired  in  one  of  two  modes  :  first,  as  against  tlic 
;)ersou  of  tlie  defendant  by  tlie  service  of  process  ;  or,  secondly,  by  a 
procedure  against  the  property  of  tlie  defendant  within  the  jurisdiction 
of  the  court.  In  the  latter  case,  the  defendant  is  not  personally  bound 
by  the  judgment  beyond  the  property  in  question.  And  it  is  imma- 
terial whether  the  proceeding  against  the  propert}-  be  b}-  an  attachment 
or  bill  in  chancer}-.     It  must  be  substantially  a  proceeding  in  rem." 

These  citations  are  not  made  as  authoritative  expositions  of  the  law  ; 
for  the  language  was  perhaps  not  essential  to  the  decision  of  the  cases 
in  which  it  was  used,  but  as  expressions  of  the  opinion  of  eminent 
jurists.  But  in  Cooper  v.  Re3'nolds,  reported  in  the  10th  of  Wallace, 
it  was  essential  to  the  disposition  of  the  case  to  declare  the  effect  of  a 
personal  action  against  an  absent  party,  without  the  jurisdiction  of  the 
court,  not  served  with  process  or  voluntarily  submitting  to  the  tribunal, 
when  it  was  sought  to  subject  his  property  to  the  payment  of  a  demand 
of  a  resident  complainant ;  and  in  the  opinion  there  delivered  we  have 
a  clear  statement  of  the  law  as  to  the  efficacy  of  such  actions,  and  the 
jurisdiction  of  the  court  over  them.  In  that  case,  the  action  was  for 
damages  for  alleged  false  imprisonment  of  the  plaintiff;  and  upon  his 
affidavit  that  the  defendants  had  fled  from  the  State,  or  had  absconded 
or  concealed  themselves  so  that  the  ordinarj-  process  of  law  could  not 
reach  them,  a  writ  of  attachment  was  sued  out  against  their  propert}'. 
Publication  was  ordered  by  the  court,  giving  notice  to  them  to  appear  and 
plead,  answer  or  demur,  or  that  the  action  would  be  taken  as  confessed 
and  proceeded  in  ex  parte  as  to  them.  Publication  was  had  ;  but  they 
made  default,  and  judgment  was  entered  against  them,  and  the  attached 
property  was  sold  under  it.  The  purchaser  having  been  put  into  pos- 
session of  the  property,  the  original  owner  brought  ejectment  for  its 
recovery.  In  considering  the  character  of  the  proceeding,  the  court, 
speaking  through  Mr.  Justice  Miller,  said  :  — 

"  Its  essential  purpose  or  nature  is  to  establish,  by  the  judgment  of 
the  court,  a  demand  or  claim  against  the  defendant,  and  subject  his 
property  lying  within  the  territorial  jurisdiction  of  the  court  to  the  pay- 
ment of  that  demand.  But  the  plaintiff  is  met  at  the  commencement  of 
his  proceedings  by  the  fact  that  the  defendant  is  not  within  the  terri- 
torial jurisdiction,  and  cannot  be  served  with  any  process  bj-  which  he 
can  be  brought  personally  within  the  power  of  the  court.  For  this 
difficulty  the  statute  has  provided  a  remedy.  It  says  that,  upon  affi-[ 
davit  being  made  of  that  fact,  a  writ  of  attachment  may  be  issued  and' 
levied  on  any  of  the  defendant's  property,  and  a  publication  ma}-  be] 
made  warning  him  to  appear,  and  that  thereafter  the  court  may  proceed/ 
in  the  case  whether  he  appears  or  not.  If  the  defendant  appears,  the 
cause  becomes  mainly  a  suit  in  personam^  with  the  added  incident  that 
the  property  attached  remains  liable,  under  the  control  of  the  court,  to 
answer  to  any  demand  which  may  be  established  against  the  defendant 
by  the  final  judgment  of  the  court.  But  if  there  is  no  appearance  of  the 
defendant,  and  no  service  of  process  on  him,  the  case  becomes  in  itB 

13 


194  PENNOYER    V.    NEFF.  [CHAP.    Ill 

essential  nature  a  proceeding  in  rem  ;  the  only  effect  of  which  is  to  sub- 
ject the  property  attached  to  the  payment  of  the  demand  which  the  court 
may  find  to  be"  due  to  the  plaintiff.  That  such  is  the  nature  of  this 
proceeding  in  this  latter  class  of  cases  is  clearly  evinced  by  two  well- 
established  propositions.  First,  the  judgment  of  the  court,  though  inj 
form  a  personal  judgment  against  the  defendant,  has  no  effect  beyond 
the  property  attached  in  that  suit.  No  general  execution  can  be  issued 
for  any  balance  unpaid  after  the  attached  property  is  exhausted.  No 
suit  can  be  maintained  on  such  a  judgment  in  the  same  court,  or  in 
anv  other  ;  nor  can  it  be  used  as  evidence  in  any  other  proceeding  not 
affecting  the  attached  property  ;  nor  could  the  costs  in  that  proceeding 
be  collected  of  defendant  out  of  any  other  property  than  that  attached" 
in  the  suit.  Second,  the  court,  in  such  a  suit,  cannot  proceed  unless 
the  officer  finds  some  property  of  defendant  on  which  to  levy  the  writ 
of  attachment.  A  return  that  none  can  be  found  is  the  end  of  the  case, 
/  and  deprives  the  court  of  further  jurisdiction,  though  the  publication 
I   may  have  been  duly  made  and  proven  in  court." 

The  fact  that  the  defendants  in  that  case  had  fled  from  the  State,  or 
had  concealed  themselves,  so  as  not  to  be  reached  by  the  ordinary  pro- 
cess of  the  court,  and  were  not  non-residents,  was  not  made  a  point  in 
the  decision.  The  opinion  treated  them  as  being  without  the  territorial 
jurisdiction  of  the  court ;  and  the  grounds  and  extent  of  its  authority 
over  persons  and  property  thus  situated  were  considered,  when  they 
were  not  brought  within  its  jurisdiction  by  personal  service  or  voluntary 
appearance. 

The  writer  of  the  present  opinion  considered  that  some  of  the  objec- 
tions to  the  preliminary  proceedings  in  the  attachment  suit  were  well 
taken,  and  therefore  dissented  from  the  judgment  of  the  court ;  but  to 
the  doctrine  declared  in  the  above  citation  he  agreed,  and  he  may  add, 
that  it  received  the  approval  of  all  the  judges.  ^It  is  the^onl}-  do^jne 
consistent  with_£roj2er_pi'otection  to  citizens  of  otjier  States.     If,  with- 
^"ouTpersonal  service,  judgments  in  j^ersonam,  obtained  ex  parte  against 
<-Trori-resiclents  ahd^  absent  parties,  iipon  mere  publication  of  process, 
— which,  in  the  great  majority  of  cases,  would  never  be  seen  by  the  parties 
"'iiitrivstcd,  couhl  be  upheld  and  enforced,  they  would  be  the  constant 
_iii.slruuieiits  of  fraud  and  oppression.    Judgments  for  all  sorts  of  claims 
uxmn  contracts  and  for  torts,  real  or  pretended,  would  be  thus  obtained, 
~^.uuder  which  property  would  be  seized,  when  the  evidence  of.lhe  trans- 
— .^ions  upon  which  they  were  founded,  if  they  ever  had  any  existence, 
had  perished. 

Substituted  service  by  publication,  or  in  any  other  authorized  form, 
may  be  sufficient  to  inform  parties  of  the  object  of  proceedings  taken 
where  proi^orty  is  once  brought  under  tlie  control  of  the  court  by  seizure 
or  some  equivalent  act.  The  law  assumes  that  property  is  always  in  the 
possession  of  its  owner,  in  person  or  by  agent ;  and  it  proceeds  upon  tlie 
theory  that  its  seizure  will  inform  him,  not  only  that  it  is  taken  into 
the  custody  of  the  court,  but  that  he  must  look  to  any  proceedings 


SECT.    III.]  PENNOYER    V.    NEFF.  195 

authorized  by  law  upon  such  seizure  for  its  condemnation  and  sale. 
8ucli  service  may  also  be  sufficient  in  cases  where  the  object  of  the 
action  is  to  reach  and  dispose  of  property  in  the  State,  or  of  some  in- 
terest therein,  by  enforcing  a  contract  or  a  lien  respecting  the  same,  or 
to  partition  it  among  diflereut  owners,  or,  when  the  public  is  a  party, 
to  condemn  and  appropriate  it  for  a  public  purpose.  In  other  words, 
such  service  ma}'  answer  in  all  actions  which  are  substantially  proceed- 
ings m  rem.  But  where  the  entire  object  of  the  action  is  to  determine 
the  personal  rights  and  obligations  of  the  defendants,  that  is,  where  the 
suit  is  merely  iii  personam,  constructive  service  in  this  form  upon  a 
non-resident  is  ineffectual  for  any  purpose.  Process  from  the  tribunals 
of  one  State  cannot  run  into  another  State,  and  summon  parties  there 
domiciled  to  leave  its  territory  and  respond  to  proceedings  against 
them.  Publication  of  process  or  notice  within  the  State  where  the  tri- 
bunal sits  cannot  create  any  greater  obligation  upon  the  non-resident 
to  appear.  Process  sent  to  him  out  of  the  State,  and  process  published 
within  it,  are  equally  unavailing  in  proceedings  to  establish  his  personal 
liabilit}-. 

The  want  of  authority  of  the  tribunals  of  a  State  to  adjudicate  upon 
the  obligations  of  non-residents,  where  they  have  no  property  within 
its  limits,  is  not  denied  by  the  court  below ;  (but  the  position  is  assumed, 
that,  where  they  have  property  within  the  State,  it  is  immaterial  whether 
the  property  is  in  the  first  instance  brought  under  the  control  of  the 
court  bj-  attachment  or  some  other  equivalent  act,  and  afterwards  ap- 
plied b}'  its  judgment  to  the  satisfaction  of  demands  against  its  owner  ; 
or  such  demands  be  first  established  in  a  personal  action,  and  the  prop- 
erty of  the  non-resident  be  afterwards  seized  and  sold  on  execution. ^ 
But  the  answer  to  this  position  has  already-  been  given  in  the  statement, 
that  the  jurisdiction  of  the  court  to  inquire  into  and  determine  his  obli- 
gations at  all  is  only  incidental  to  its  jurisdiction  over  the  property. 
Its  jurisdiction  in  that  respect  cannot  be  made  to  depend  upon  facts  to 
be  ascertained  after  it  has  tried  the  cause  and  rendered  the  judgment. 
If  the  judgment  be  previoush'  void,  it  will  not  become  valid  by  the  sub- 
sequent discovery  of  property  of  the  defendant,  or  hs  his  subsequent 
acquisition  of  it.  The  judgment,  if  void  when  rendered,  will  always 
remain  void  ;  it  cannot  occupy  the  doubtful  position  of  being  valid  if 
property  be  found,  and  void  if  there  be  none.  Even  if  the  position 
assumed  were  confined  to  cases  where  the  non-resident  defendant  pos- 
sessed property  in  the  State  at  the  commencement  of  the  action,  it 
would  still  make  the  validity  of  the  proceedings  and  judgment  depend 
upon  the  question  whether,  before  the  levy  of  the  execution,  the  de- 
fendant had  or  had  not  disposed  of  the  propert}'.  If  before  the  lev)-, 
the  property  should  be  sold,  then,  according  to  this  position,  the  judg- 
ment would  not  be  binding.  This  doctrine  would  introduce  a  new  ele- 
ment of  uncertainty  in  judicial  proceedings.     The  contrar}-  is  the  law. 

The  validity  of    evpry  judgn^t^^t    rlappnrla    npr>n    thp   jnn'c^r]u>tion    of   thp 

court  before  it  is  rendered,  not  upon  what  may  occur  subsequently.     In 


igQ  PENNOYER   V.   KEFF.  [CHAP.   III. 

Webster  u.  Reid,  reported  in  11th  of  Howard,  the  plaintiff  claimed 
title  to  land  sold  under  judgments  recovered  in  suits  brought  in  a 
territorial  court  of  Iowa,  upon  publication  of  notice  under  a  law  of  the 
territor}-,  without  service  of  process  ;  and  the  court  said  :  — 

"These  suits  were  not  a  proceeding  in  rem  against  the  land,  but 
were  in  personam  against  the  owners  of  it.  Whether  they  all  resided 
within  the  territory  or  not  does  not  appear,  nor  is  it  a  matter  of  any 
importance.  No  person  is  reguirecUoa^iswer  jijLa  sujt  on  whom  pror 
cess  hasj]£t_been_servedi_oi^^  In  I 

[ tUTs'casvtiiere  warnol)ersonarnotice,  nor  an  attachment  or  other  proJ 
ceeding  against  the  land,  until  after  the  judgments.     The  judgments, 
therefore,  are  nullities,  and  did  not  autljorize  the  executions  on  which 
the  land  was  sold." 

The  force  and  effect  of  judgments  rendered  against  non-residents 
without  personal  service  of  process  upon  them,  or  their  voluntary  ap- 
pearance, have  been  the  subject  of  frequent  consideration  in  the  courts 
of  the  United  States  and  of  the  several  States,  as  attempts  have  been 
made  to  enforce  such  judgments  in  States  other  than  those  in  wliich 
they  were  rendered,  under  the  provision  of  the  Constitution  requiring 
that  "  full  faith  and  credit  shall  be  given  in  each  State  to  the  public 
acts,  records,  and  judicial  proceedings  of  every  other  State  ;  "  and  the 
act  of  Congress  providing  for  the  mode  of  authenticating  such  acts, 
records,  and  proceedings,  and  declaring  that,  when  thus  authenticated, 
"  they  shall  have  such  faith  and  credit  given  to  them  in  every  court 
within  the  United  States  as  they  have  by  law  or  usage  in  the  courts  of 
the  State  from  which  they  are  or  shall  be  taken."  In  the  earlier  cases, 
it  was  supposed  that  the  act  gave  to  all  judgments  the  same  effect  in 
other  States  which  they  had  by  law  in  the  State  where  rendered.^  But 
this  view  was  afterwards  qualified  so  as  to  make  the  act  applicable  only 
when  the  court  rendering  the  judgment  had  jurisdiction  of  the  parties 
and  of  the  subject-matter,  and  not  to  preclude  an  inquiry  into  the  juris- 
diction of  the  court  in  wliich  the  judgment  was  rendered,  or  the  right 
of  the  State  itself  to  exercise  autliority  over  the  person  or  the  subject- 
matter. )  M'Elmoyle  r.  Cohen,  13  Pet.  312.  In  the  case  of  D'Arcy  v. 
Ketchum,  reported  in  the  lltli  of  Howard,  this  view  is  stated  with  groat 
clearness.  Tliat  was  an  action  in  the  Circuit  Court  of  the  United  States 
for  Louisiana,  brought  upon  a  judgment  rendered  in  New  York  under  a 
State  statute,  against  two  joint  debtors,  only  one  of  whom  hud  been 
served  with  process,  the  other  being  a  non-resident  of  tlie  State.  The 
Circuit  Court  held  the  judgment  conclusive  and  binding  upon  the  non- 
resident not  served  with  process  ;  but  this  court  reversed  its  decision, 
•  observing,  tliat  it  was  a  familiar  rule  that  countries  foreign  to  our  own 
disregarded  a  judgment  merely  against  tlie  person,  where  the  defendant 
liad  not  been  served  witli  process  nor  had  a  day  in  court ;  that  national 
comity  was  never  thus  extended  ;  that  the  proceeding  was  deemed  an 
illegitimnte  aKsumption  of  power,  and  resisted  as  mere  abuse;  that  no 
faith  and  credit  or  force  and  effect  had  been  given  to  such  judgments 


SECT.   III.] 


PENNOYEK   V.    NEFF. 


197 


bj'  any  State  of  the  Union,  so  far  as  known  ;  and  that  the  State  courts 
had  uniformly,  and  in  many  instances,  held  them  to  be  void.  "The 
international  law,"  said  the  court,  "as  it  existed  among  the  States  in 
1790,  was,  that  a  judgment  rendered  in  one  State,  assuming  to  bind  the 
person  of  a  citizen  of  another,  was  void  within  the  foreign  State  when 
the  defendant  had  not  been  served  with  process  or  voluntarily  made 
defence;  because  neither  the  legislative  jurisdiction  nor  that  of  courts 
of  justice  had  binding  force."  And  the  court  held  that  the  act  of 
Congress  did  not  intend  to  declare  a  new  rule,  or  to  embrace  judicial 
records  of  this  description.  As  was  stated  in  a  subsequent  case,  the 
doctrine  of  this  court  is,  that  the  act  "  was  not  designed  to  displace 
that  principle  of  natural  justice  which  requires  a  person  to  have  notice 
of  a  suit  before  he  can  be  conclusively  bound  by  its  result,  nor  those 
rules  of  public  law  which  protect  persons  and  property  within  one  State 
from  the  exercise  of  jurisdiction  over  them  by  another."  The  Lafayette 
Insurance  Co.  v.  French  et  al.^  18  How.  404. 

This  whole  subject  has  been  very  fully  and  learnedly  considered  in 
the  recent  case  of  Thompson  v.  Whitman,  18  Wall.  457,  where  all  the 
authorities  are  carefully  reviewed  and  distinguished  ;   and  the  conclu- 
sion above  stated  is  not  only  reaffirmed,  but  the  doctrine  is  asserted, 
that  the  record  of  a  judgment  rendered  in  another  State  may  be  con- 
tradicted as  to  the  facts  necessary  to  give  the  court  jurisdiction  against 
its  recital  of  their  existence.     In  all  the  cases  brought  in  the  State  and 
Federal  courts,  where  attempts  have  been  made  under  the  act  of  Con- 
gress to  give  effect  in  one  State  to  personal  judgments  rendered  in 
another  State  against  non-residents,  without  service  upon  them,  or  upon 
substituted  service  by  publication,  or  in  some  other  form,  it  has  been 
held,  without  an  exception,  so  far  as  we  are  aware,  that  such  judgments 
/  were  without  any  binding  force,  except  as  to  property,  or  interests  in 
(    propert}',  within  the  State,  to  reach  and  affect  which  was  the  object  of 
I   the  action  in  which  the  judgment  was  rendered,  and  which  property 
\  was  brought  under  control  of  the  court  in  connection  with  the  process 
I  against  the  person.     The  proceeding  in  such  cases,  though  in  the  form 
V  of  a  personal  action,  has  been  uniformly  treated,  where  service  was  not 
obtained,  and  the  party  did   not  voluntarily  appear,  as  effectual  and 
binding  merely  as  a  proceeding  in  rem,  and  as  having  no  operation 
beyond  the  disposition  of  the  property,  or  some  interest  therein.     And 
the  reason  assigned  for  this  conclusion  has  been  that  which  we  have 
already  stated,  that  the  tribunals  of  one  State  haA;e_no  jurisdiction  over 
peTsons  beyond  its  limits,  and  can  inquire  only  into  their^ligations_to 
its  citizens  when  exercising  its  concededjurisdiction  over  their  property 
within  its  limits.     In  Bissell  y.Briggs,  decided  by  the  Supreme  Court 
of^Iassachusetts  as  early  as  1813,  the  law  is  stated  substantially  in 
conformity  with  these  views.     In  that  case,  the  court  considered  at 
length  the  effect  of  the  constitutional  provision,  and  the  act  of  Congress 
mentioned  ;  and  after  stating  that,  in  order  to  entitle  the  judgment  ren- 
dered in  any  court  of  the  United  States  to  the  full  faith  and  credit 


198  PENNOYER   V.   NEFF.  [CHAP.   III. 

mentioned  in  the  Constitution,  the  court  must  have  had  jurisdiction  not 
only  of  the  cause,  but  of  the  parties,  it  proceeded  to  illustrate  its  posi- 
tion by  observing,  that,  where  a  debtor  living  in  one  State  has  goods, 
effects,  and  credits  in  another,  his  creditor  living  in  the  other  State 
may  have  the  property  attached  pursuant  to  its  laws,  and,  on  recovering 
judgment,  have  the  property  applied  to  its  satisfaction  ;  and  that  the 
party  in  whose  hands  the  property  was  would  be  protected  by  the  judg- 
ment in  the  State  of  the  debtor  against  a  suit  for  it,  because  the  court 
rendering  the  judgment  had  jurisdiction  to  that  extent ;  but  that  if  the 
property" attached  were  insufficient  to  satisfy  the  judgment,  and  the 
creditor  should  sue  on  that  judgment  in  the  State  of  the  debtor,  he 
would  fail,  because  the  defendant  was  not  amenable  to  the  court  ren- 
dering the  judgment.  In  other  words,  it  was  held  that  over  the  prop- 
erty within  the  State  the  court  had  jurisdiction  by  the  attachment,  but 
had  none  over  his  person  ;  and  that  any  determination  of  his  liability, 
except  so  far  as  was  necessary  for  the  disposition  of  the  property,  was 
invalid.-' 

In  Kilbourn  v.  Woodworth,  5  Johns.  (X.  Y.)  37,  an  action  of  debt 
was  brought  in  New  York  upon  a  personal  judgment  recovered  in 
Massachusetts.  The  defendant  in  that  judgment  was  not  served  with 
process ;  and  the  suit  was  commenced  by  the  attachment  of  a  bedstead 
belonging  to  the  defendant,  accompanied  with  a  summons  to  appear, 
served  on  his  wife  after  she  had  left  her  place  in  Massachusetts.  The 
court  held  that  the  attachment  bound  only  the  property  attached  as  a 
proceeding  in  rem,  and  that  it  could  not  bind  the  defendant,  observing, 
that  to  bind  a  defendant  personally,  when  he  was  never  personally 
summoned  or  had  notice  of  the  proceeding,  would  be  contrary  to  the 
first  principles  of  justice,  repeating  the  language  in  that  respect  of 
Chief  Justice  De  Grey,  used  in  the  case  of  Fisher  v.  Lane,  3  Wils.  297, 
in  1772.  See  also  Borden  r.  Fitch,  15  Johns.  (N.  Y.)  121,  and  the 
cases  there  cited,  and  Harris  v.  Hardeman  et  al,  14  How.  334.  To  the 
same  purport  decisions  are  found  in  all  the  State  courts.  In  several 
of  the  cases,  the  decision  has  been  accompanied  with  the  observation 
that  a  personal  judgment  thus  recovered  has  no  binding  force  without 
the  State  in  which  it  is  rendered,  implying  that  in  such  State  it  may  be 
valid  and  binding.  But  if  the  court  has  no  jurisdiction  over  the  person 
of  the  defendant  by  reason  of  his  non-residence,  and,  consequently,  no 
authority  to  pass  upon  his  personal  rights  and  obligations  ;  if  the  whole 
proceeding,  without  service  upon  him  or  his  appearance,  is  coram  non 
judice  and  void  ;  if  to  hold  a  defendant  bound  by  such  a  judgment  is 
contrary  to  the  first  principles  of  justice,  —  it  is  difficult  to  see  how  the 
iud<Tment  can  logitimatelv  have  anv  force  within  the  State.  The  Ian- 
guage  used  can  be  justified  only  on  the  ground  that  there  was  no  mode 
of  directly  reviewing  such  judgment  or  impeaching  its  validity  within 

1  Ace.  Freeman  v.  Aldcrsoii.  119  U.  S.  185  ;  Mc Vicar  v.  Beedy,  31  Mi-.  314  :  Eliot 
V.  Md'ormick,  144  Mass.  10  ;  Arndt  v.  Arndt,  15  Oliio,  33  ;  Jones  v.  Spencer,  15  Wis. 
683.     See  Melliop  v.  Doane,  31  la.  397.— Ed. 


SECT.    III.] 


PENNOYER   V.    NEFF. 


199 


the  State  where  rendered ;  and  that,  therefore,  it  could  be  called  in 
question  only  when  its  enforcement  was  elsewhere  attempted.  In  later 
cases,  this  language  is  repeated  with  less  frequency  than  formerly,  it 
beginning  to  be  considered,  as  it  always  ought  to  have  been,  that  a 
judgment  which  can  be  treated  in  any  State  of  this  Union  as  contrary 
to  the  first  principles  of  justice,  and  as  an  absolute  nullity,  because 
rendered  without  any  jurisdiction  of  the  tribunal  over  the  party,  is 
not  entitled  to  any  respect  in  the  State  where  rendered.  Smith  v. 
McCutchen,  38  Mo.  415;  Darrance  f.  Preston,  18  Iowa,  396;  Hakes 
V.  Shupe,  27  id.  465  ;  Mitchell's  Administrator  v.  Gray,  18  Ind.  123. 

Be  that^as  itinay^the_courts  of  tlie  U»jjgd  States^  are^  not  re^iir^ 
to  give  eject  to  nidjjmejit&jif  JMs-character  when_ any  rjgh^is_cla]med 
undej  the2U.__WJiiisi-tliey-are  not  foreign  J:ribunals_in_theirxektions  to^ 
the^  State~courts,  they  arejaibunals_^f  _a._differeiit-sovei-eignt^V  ex^ 
cising  g^digtTnHIgMJji^Tpp^"'^*'"^  jurisrliptinn^,  ajid  are  bound  U)_giye  to — 
The  judgments  of  the_St?vtP  nonrts._Qnly  the  same  fa,ith  aj]id_cre5lit_which__ 
the  courts^another  State_are_bomidJtQ-gi-V£- to  them^,.,  ^ 

Since  the  adopTioiTof  the  Fourteenth  Amendment  to  the  Federal 
Constitution,  the  validity  of  such  judgments  may  be  directly  questioned, 
and  their  enforcement  in  the  State  resisted,  on  the  ground  that  pro- 
ceedings in  a  court  of  justice  to  determine  the  personal  rights  and 
obligations  of  parties  over  whom  that  court  has  no  jurisdiction  do  not 
constitute  due  process  of  law.  Whatever  difficulty  may  be  experienced 
in  giving  to  those  terms  a  definition  which  will  embrace  every  permis- 
sible exertion  of  power  affecting  private  rights,  and  exclude  such  as  is 
forbidden,  there  can  be  no  doubt  of  their  meaning  when  applied  to 
judicial  proceedings.  They  then  mean  a  course  of  legal  proceedings 
according  to  those  rules  and  principles  which  have  been  established 
in  our  systems  of  jurisprudence  for  the  protection  and  enforcement  of 
private  rights.  To  give  such  proceedings  any  validity,  there  must 
be  a  tribunal  competent  by  its  constitution  —  that  is,  by  the  law  of  its 
creation  —  to  pass  upon  the  subject-matter  of  the  suit ;  and  if  that 
involves  merely  a  determination  of  the  personal  liability  of  the  defend- 
ant, he  must  be  brought  within  its  jurisdiction  by  service  of  process 
within  the  State,  or  his  voluntary  appearance. 

Except  in  cases  affecting  the  personal  status  of  the  plaintiff,  and 
cases  in  which  that  mode  of  service  may  be  considered  to  have  been 
assented  to  in  advance,  as  hereinafter  mentioned,  the  substituted  ser- 
vice of  process  by  publication,  allowed  by  the  law  of  Oregon  and  by 
similar  laws  in  other  States,  where  actions  are  brought  against  non- 
residents, is  effectual  only  where,  in  connection  with  process  against 
the  person  for  commencing  the  action,  property  in  the  State  is  brought 
under  the  control  of  the  court,  and  subjected  to  its  disposition  by  pro- 
cess adapted  to  that  purpose,  or  where  the  judgment  is  sought  as  a 
means  of  reaching  such  property  or  affecting  some  interest  therein  :  in 
\  other  words,  where  the  action  is  in  the  nature  of  a  proceeding  m  rem. 
As  stated  by  Cooley  in  his  Treatise  on  Constitutional  Limitations,  405, 


200  PENNOYEK   V.    NEFF.  [CHAP.    III. 

for  any  other  purpose  than  to  subject  the  property  of  a  non-resident  to 
valid  claims  against  him  in  the  State,  "due  process  of  law  would  re- 
quire appearance  or  personal  service  before  the  defendant  could  be 
personally'  bound  b}'  any  judgment  rendered." 

It  is  true  that,  in  a  strict  sense,  a  proceeding  in  rem  is  one  taken 
directl}'  against  property,  and  has  for  its  object  the  disposition  of  the 
propert}-,  without  reference  to  the  title  of  individual  claimants  ;  but, 
in  a  larger  and  more  general  sense,  the  terms  are  applied  to  actions 
between  parties,  where  the  direct  object  is  to  reach  and  dispose  of 
propert}'  owned  by  them,  or  of  some  interest  therein.  Such  are  cases 
commenced  by  attachment  against  the  property  of  debtors,  or  insti- 
tuted to  partition  real  estate,  foreclose  a  mortgage,  or  enforce  a  lien. 
So  far  as  they  affect  property  in  the  State,  they  are  substantially  pro- 
ceedings in  rem  in  the  broader  sense  which  we  have  mentioned. 

It  is  hardly  necessar}-  to  observe,  that  in  all  we  have  said  we  have 
had  reference  to  proceedings  in  courts  of  first  instance,  and  to  their 
Jurisdiction,  and  not  to  proceedings  in  an  appellate  tribunal  to  review 
the  action  of  such  courts.  The  latter  may  be  taken  upon  such  notice, 
personal  or  constructive,  as  the  State  creating  the  tribunal  may  provide. 
They  are  considered  as  rather  a  continuation  of  the  original  litigation 
than  the  commencement  of  a  new  action.  Nations  et  al.  v.  Johnson 
et  al.,  24  How.  195. 

It  follows  from  the  views  expressed  that  the  personal  judgment  re- 
covered in  the  State  court  of  Oregon  against  the  plaintiff  herein,  then 
a  non-resident  of  the  State,  was  without  any  validity,  and  did  not  au- 
thorize a  sale  of  the  property  in  controversy. 

To  prevent  any  misapplication  of  the  views  expressed  in  this  opinion, 
it  is  proper  to  observe  that  we  do  not  mean  to  assert,  by  anything  we 
have  said,  that  a  State  may  not  authorize  proceedings  to  determine  the 
status  of  one  of  its  citizen^  towards  a  non-resident,  which  would  be 
binding  within  the  State,  though  made  without  service  of  process  or 
personal  notice  to  the  non-resident.  The  jurisdiction  which  every  State 
possesses  to  determine  the  civil  status  and  capacities  of  all  its  in- 
iiabitants  involves  authority  to  prescribe  the  conditions  on  which  pro- 
ceedings affecting  them  may  be  commenced  and  carried  on  within  its 
territory.  The  State,  for  example,  has  absolute  right  to  prescribe  the 
conditions  upon  which  the  marriage  relation  l)etween  its  own  citizens 
shall  be  created,  and  the  causes  for  which  it  ma}'  be  dissolved.  One 
of  the  parties  guilty  of  acts  for  which,  b}'  the  law  of  the  State,  a  disso- 
lution may  be  granted,  may  have  removed  to  a  State  wiieie  no  dissolu- 
tion is  permitted.  The  complaining  party  would,  therefore,  fail  if  a 
divorce  were  sought  in  the  State  of  the  defendant ;  and  if  application 
could  not  be  made  to  the  tribunals  of  the  complainant's  domicile  in  such 
case,  and  proceedings  be  there  instituted  without  personal  service  of 
process  or  personal  notice  to  the  offending  party,  the  injured  citizen 
would  be  without  redress.     Bish.  Marr.  and  Div.,  sect.  loG. 

Neither  do  we  mean  to  assert  that  a  State  ma}'  not  require  a  non- 


SECT.    III.]  PENXOYER    V.    XEFF.  201 

resident  entering  into  a  partnership  or  association  within  its  limits,  or 
making  contracts  enforceable  there,  to  appoint  an  agent  or  representa- 
tive in  the  State  to  receive  service  of  process  and  notice  in  legal  pro- 
ceedings instituted  with  respect  to  such  partnership,  association,  or 
contracts,  or  to  designate  a  place  where  such  service  may  be  made  and 
notice  given,  and  provide,  upon  their  failure,  to  make  such  appointment 
or  to  designate  such  place  that  service  may  be  made  upon  a  public 
officer  designated  for  that  purpose,  or  in  some  other  prescribed  way, 
and  that  judgments  rendered  upon  such  service  may  not  be  binding 
upon  the  non-residents  both  within  and  without  the  State.  As  was 
said  by  the  Court  of  Exchequer  in  Vallee  v.  Dumergue,  4  Exch.  290, 
"It  is  not  contrary  to  natural  justice  that  a  man  who  has  agreed  to 
receive  a  particular  mode  of  notification  of  legal  proceedings  should  be 
bound  b}-  a  judgment  in  which  that  particular  mode  of  notification  has 
been  followed,  even  though  he  may  not  have  actual  notice  of  them." 
See  also  The  Lafayette  Insurance  Co.  v.  French  et  al.,  18  How.  404, 
and  Gillespie  v.  Commercial  Mutual  Marine  Insurance  Co.,  12  Gra}' 
(Mass.),  201.  Nor  do  we  doubt  that  a  State,  on  creating  corporations 
or  other  institutions  for  pecuniary  or  charitable  purposes,  may  provide 
a  mode  in  which  their  conduct  may  be  investigated,  their  obligations 
enforced,  or  their  charters  revoked,  which  shall  require  other  than  per- 
sonal service  upon  their  officers  or  members.  Parties  becoming  mem- 
bers of  such  corporations  or  institutions  would  hold  their  interest 
subject  to  the  conditions  prescribed  by  law.  Copin  v.  Adamson, 
Law  Rep.  9  Ex.  345. 

In  the  present  case  there  is  no  feature  of  this  kind,  and,  conse- 
quently, no  consideration  of  what  would  be  the  eflTect  of  such  legislation 
in  enforcing  the  contract  of  a  non-resident  can  arise.  The  question 
here  respects  only  the  validity  of  a  money  judgment  rendered  in  one 
State,  in  an  action  upon  a  simple  contract  against  the  resident  of 
another,  without  service  of  process  upon  him,  or  his  appearance 
therein.  Judgment  affirmed. 

HcNT,  J.,  dissenting.  I  am  compelled  to  dissent  from  the  opinion 
and  judgment  of  the  court,  and,  deeming  the  question  involved  to  be 
important,  I  take  leave  to  record  my  views  upon  it.   .  .   . 

It  is  said  that  the  case  where  a  {^-eliminary  seizure  has  been  made, 
and  jurisdiction  thereby  conferred,  diflfers  from  that  where  the  property 
is  seized  at  the  end  of  the  action,  in  this  :  In  the  first  case,  the  prop- 
erty is  supposed  to  be  so  near  to  its  owner,  that,  if  seizure  is  made  of 
it,  he  will  be  aware  of  the  fact,  and  have  his  opportunity  to  defend,  and 
jurisdiction  of  the  person  is  thus  obtained.  This,  however,  is  matter 
of  discretion  and  of  judgment  only.  Such  seizure  is  not  in  itself  notice 
to  the  defendant,  and  it  is  not  certain  that  he  will  by  that  means  re- 
ceive notice.  Adopted  as  a  means  of  communicating  it,  and  although 
a  very  good  means,  it  is  not  the  only  one,  nor  necessarily  better  than  a 
publication  of  the  pendency  of  the  suit,  made  with  an  honest  intention 


202  WOODRUFF   V.    TAYLOR.  [GH\P.   III. 

to  reach  the  debtor.  Who  shall  assume  to  say  to  the  legislature,  that  if 
it  authorizes  a  particular  mode  of  giving  notice  to  a  debtor,  its  action 
may  be  sustained,  but  if  it  adopts  any  or  all  others,  its  action  is  uncon- 
stitutional and  void?  The  rule  is  universal,  that  modes,  means,  ques- 
tions of  expediency  or  necessity,  are  exclusively  within  the  judgment  of 
the  legislature,  and  that  the  judiciary  cannot  review  them.  This  has  been 
so  held  in  relation  to  a  bank  of  the  United  States,  to  the  legal-tender 
act,  and  to  cases  arising  under  other  provisions  of  the  Constitution. 

In  Jarvis  v.  Barrett,  U  Wis.  591,  such  is  the  holding.  The  court 
say :  — 

"The  essential  fact  on  which  the  publication  is  made  to  depend  is 
property  of  the  defendant  in  the  State,  and  not  whether  it  has  been 
attached.  .  .  .  There  is  no  magic  about  the  writ  [of  attachment] 
which  should  make  it  the  exclusive  remedj-.  The  same  legislative 
power  which  devised  it  can  devise  some  other,  and  declare  that  it  shall 
have  the  same  force  and  effect.  The  particular  means  to  be  used  are 
always  within  the  control  of  the  legislature,  so  that  the  end  be  not 
beyond  the  scope  of  legislative  power." 

If  the  legislature  shall  think  that  publication  and  deposit  in  the  post- 
office  are  likel}*  to  give  the  notice,  there  seems  to  be  nothing  in  the 
nature  of  things  to  prevent  their  adoption  in  lieu  of  the  attachment. 
The  point  of  power  cannot  be  thus  controlled. 

That  a  State  can  subject  land  within  its  limits  belonging  to  non- 
resident owners  to  debts  due  to  its  own  citizens  as  it  can  legislate  upon 
all  other  local  matters  ;  that  it  can  prescribe  the  mode  and  process  by 
which  it  is  to  be  reached,  —  seems  to  me  very  plain. 

I  am  not  willing  to  declare  that  a  sovereign  State  cannot  subject  the 
land  within  its  limits  to  the  payment  of  debts  due  to  its  citizens,  or 
that  the  power  to  do  so  depends  upon  the  fact  whether  its  statute  shall 
authorize  the  property  to  be  levied  upon  at  the  commencement  of  the 
suit  or  at  its  termination.  This  is  a  matter  of  detail ;  and  I  am  of 
opinion  that  if  reasonable  notice  be  given,  with  an  opportunity  to 
defend  when  appearance  is  made,  the  question  of  power  will  be  fully 
satisfied. 


WOODRUFF  V.    TAYLOR. 

Supreme  Court  of  Vermont.     1847. 

[Reported  20  Vermont,  65.] 

Trespass  for  taking  certain  personal  property.  The  defendant 
pleaded  the  general  issue,  and  also  pleaded  two  pleas  in  bar;  which 
were,  in  substance,  that  he  commenced  a  suit  against  one  Phelps 
Smith  in  the  Court  of  King's  Bench  in  the  District  of  Montreal,  in 
Lower  Canada,  and  caused  his  process  to  be  served  by  arresting  the 


SECT.    III.J  WOODRUFF    ??.    TAYLOR.  203 

body  of  Smith;  that  in  October,  1842,  he  recovered  judgment  against 
Smith,  in  the  suit  for  £2G  15s.  9^.,  debt,  and  £56  As.  2d.,  costs;  that 
in  June,  1843,  he  took  out  a  writ  of  Jieri  facias,  upon  the  judgment, 
against  the  goods  of  Smith,  and  placed  the  same  in  the  hands  of  the 
sheriff's  bailiff  for  service;  that  on  the  loth  of  June,  1843,  the  goods 
described  in  the  plaintiff's  declaration  being  in  the  possession  of 
Smith  at  Stanbridge  in  Lower  Canada,  the  defendant  turned  them 
out  to  the  bailiff,  in  the  presence  of  one  Hoyle,  Recors,  and  the  bailiff 
levied  on  the  same  as  the  property  of  Smith;  that,  after  giving  public 
notice  of  the  time  and  place  of  sale,  at  the  doors  of  two  churches, 
on  Sunday,  June  18,  and  by  posting  up  notices  of  the  sale  at  the 
doors  of  the  churches,  the  bailiff,  on  the  26th  of  June,  sold  the  prop- 
erty, in  the  presence  of  the  said  Recors  and  others,  to  the  highest 
bidder  for  £32  Is.  3(7. ;  that  at  the  October  Term  of  the  Court  of 
King's  Bench  the  sheriff  returned  ihefi.fa.  into  court,  together  with 
the  money  received  thereon,  excepting  £8  2s.  Id.  for  the  bailiff's 
costs;  that  then  one  Johnson  appeared  in  court  and  claimed  to  be  a 
creditor  of  Smith  and  demanded  a  ratable  division,  with  the  other 
creditors  of  Smith,  of  the  money  paid  into  court,  that  thereupon  the 
court  ordered  the  money  in  court  to  be  distributed  as  follows,  —  to 
the  crier  and  tipstaff  £5  Is.  %d.,  to  Taylor,  the  plaintiff  in  that  suit 
and  defendant  here,  £11  5s.  5c?.,  and  to  Johnson  £7  lis.  Id., — 
being  the  whole  of  the  proceeds  of  the  sale,  that  had  been  paid  into 
court;  and  that  the  said  judgment  still  remains  in  full  force.  And 
the  defendant  averred  that  during  the  time  of  all  these  proceedings, 
and  until  the  time  of  pleading,  there  was  a  custom  and  law  of  the 
said  province  of  Lower  Canada,  that  the  proceeds  of  the  sale  of 
goods  so  levied  upon  should  be  distributed,  in  manner  aforesaid, 
among  creditors  appearing  in  court  and  claiming  distribution,  and 
farther,  that  by  the  custom  and  Inw  of  said  province  ail  persons  hav- 
ing claim  in  any  way  or  manner  to  the  property  so  levied  upon  and 
sold  on  execution,  are  permitted  to  enter  their  appearance  in  court, 
when  the  proceeds  of  the  sale  are  returned,  "and  if  any  person  hav- 
ing such  claim,  neglect  to  enter  his  said  appearance  and  make  and 
prosecute  his  said  claim,  judgment  of  distribution  is  to  be  made  by 
the  court  of  the  money  so  paid  in,  in  manner  and  form  aforesaid, 
and  the  said  judgment  for  debt,  or  damages,  and  costs  and  the  final 
distribution,  as  aforesaid,  is  conclusive,  both  as  to  the  title  of  said 
goods  and  the  amount  of  said  damages  and  costs,  and  that  the  same 
is  a  bar,  against  all  persons,  to  any  and  all  actions  founded  upon 
any  title,  interest,  claim,  or  possession  in  or  to  such  goods."  To 
this  plea  the  plaintiff  replied,  alleging  that  the  property  in  the  goods 
was  in  himself,  and  not  in  Phelps  Smith,  and  averring  that,  during 
all  the  period  of  said  proceedings,  he  was  a  citizen  and  resident  of 
the  United  States,  and  not  a  resident  or  citizen  of  Canada,  nor  sub- 
ject to  the  laws  of  that  province,  and  that  he  had  no  notice  of  such 
proceedings,  or  any  of  them.     To  this  replication  the  defendant  de- 


204  WOODRUFF   V.    TAYLOR.  [CHAP.    III. 

murred.     The  county  court  adjudged  the  replication  insufficient,  and 
rendered  judgment  for  the  defendant.     Exceptions  by  plaintiff.^ 

Hall,  J.  A  second  argument  having  been  directed  in  this  case, 
it  has  perhaps  assumed  an  importance  in  the  eyes  of  counsel,  which 
its  intrinsic  difficulties  may  not  seem  to  warrant;  but  which  may, 
nevertheless,  justify  a  more  extended  opinion  than  would  otherwise 
have  been  deemed  necessary. 

The  question  raised  by  the  pleadings  is,  what  is  to  be  the  effect 
of  the  proceedings  in  the  King's  Bench  in  Canada  upon  one  not  per- 
sonally amenable  to  its  tribunal,  —  when  those  proceedings  are  used 
here,  in  another  and  foreign  jurisdiction?  It  is  insisted,  in  behalf 
of  the  defendant,  that  the  record  pleaded,  in  connection  with  the 
custom  and  law  of  Canada  set  forth  in  the  plea,  is  to  be  considered 
as  conclusive  evidence,  that  the  matter  now  in  controversy  between 
the  plaintiff  and  defendant  has  been  adjudicated  by  a  competent 
tribunal,  and  that  therefore  the  plea  is  a  good  bar  to  the  action. 
This  renders  it  necessary  to  inquire  into  the  nature  of  those  pro- 
ceedings, in  reference  to  their  sufficiency  to  constitute  a  record  of 
estoppel. 

Judgments,  in  regard  to  their  conclusive  effects  as  estoppels,  are 
of  two  classes;  —  judgments  in  2jefsona7H  and  judgments  in  rem. 
The  judgment  pleaded  in  this  case  cannot  be  supported  as  a  judg- 
ment in  personam^  because  the  court  rendering  it  had  no  jurisdiction 
of  the  person  of  the  plaintiff,  he  being  a  citizen  of  another  govern- 
ment and  having  no  notice  of  the  suit.  As  a  proceeding  against  his 
person,  the  judgment  was  coram  non  Judice,  a  mere  nullity.  This  is 
too  plain  to  need  argument,  and  is,  indeed,  conceded  by  the  counsel 
for  the  defendant,  who  insist  that  it  is  an  estoppel  as  a  proceeding 
in  rem,  —  that  although  not  binding  on  the  person,  it  is  binding  on 
the  property  in  controversy  and  concludes  its  title.  A  judgment  in 
rem  I  understand  to  be  an  adjudication,  pronounced  upon  the  status 
of  some  particular  subject-matter,  by  a  tribunal  having  competent 
authority  for  that  purpose.  It  differs  from  a  judgment  m  personam 
in  this,  that  the  latter  judgment  is,  in  form  as  well  as  substance, 
between  the  parties  claiming  the  right;  and  that  it  is  so  inter  partes 
appears  by  the  record  itself.  It  is  binding  only  upon  the  parties 
appearing  to  be  such  by  the  record  and  tliose  claiming  by  them.  I  A 
judgment  in  rem  is  founded  on  a  proceeding  instituted,  not  against 
the  person,  as  such,  but  against  or  upon  the  thing  or  subject-matter 
itself,  whose  state,  or  condition,  is  to  be  determined.^  It  is  a  pro- 
ceeding to  determine  the  state,  or  condition,  of  the  thing  itself;  and 
the  judgment  is  a  solemn  declaration  upon  the  status  of  the  thing, 
and  it  ipso  facto  renders  it  what  it  declares  it  to  be. 

The  probate  of  a  will  I  conceive  to  be  a  familiar  instance  of  a 
proceeding  in  rein  in  this  State.  The  proceeding  is,  in  form  and 
^  Arguments  of  counsel  are  omitted.  —  Ed. 


SECT.    III.]  WOODRUFF   V.   TAYLOR.  205 

substance,  upon  the  will  itself.  No  process  is  issued  against  any 
one;  but  all  persons  interested  in  determining  the  state,  or  condi- 
tion, of  the  instrument  are  constructively  notified,  by  a  newspaper 
publication,  to  appear  and  contest  the  probate;  and  the  judgment 
is,  not  that  this  or  that  person  shall  pay  a  sum  of  money,  or  do  any 
particular  act,  but  that  the  instrument  is,  or  is  not,  the  will  of  the 
testator.  It  determines  the  status  of  the  subject-matter  of  the  pro- 
ceeding. The  judgment  is  upon  the  thing  itself;  and  when  the 
proper  steps  required  by  law  are  taken,  the  judgment  is  conclusive, 
and  makes  the  instrument,  as  to  all  the  world  (at  least  so  far  as  the 
property  of  the  testator  within  this  State  is  concerned),  just  what 
the  judgment  declares  it  to  be.  This  is  one  instance  of  a  proceedino- 
upon  a  written  instrument,  to  determine  its  state,  or  condition;  and 
that  determination,  in  its  consequences,  involves  and  incidentally 
determines  the  rights  of  individuals  to  property  affected  by  it. 

But  proceedings  hi  rem  may  be  and  often  are  upon  personal  chattels, 
directly  declaring  the  right  to  them.  In  such  cases  the  proceeding 
is  for  the  supposed  violation  by  the  property,  so  to  speak,  of  some 
public  or  municipal  law,  or  regulation,  by  which  it  is  alleged  the 
title  of  the  former  owner  has  become  divested.  The  property  being 
seized,  a  proceeding  is  then  instituted  against  it,  upon  an  allegation 
stating  the  cause  for  which  it  has  become  forfeited;  upon  which 
public  notice  is  given,  in  some  prescribed  form,  to  all  persons  to 
appear  and  contest  the  allegation.  It  is  by  no  means  certain,  that 
all  persons  having  an  interest  in  the  property  have  actual  notice  of 
the  proceeding;  but  if  the  thing  itself,  upon  which  the  proceeding  is 
had,  be  within  the  jurisdiction  of  the  court,  all  persons  interested  are 
held  to  have  constructive  notice ;  and  the  sentence,  or  decree,  of  the 
court,  declaring  the  state,  or  condition,  of  the  property,  is  held  to 
be  conclusive  upon  all  the  world.  A  sale  of  the  property,  under  such 
sentence,  passes  the  right  absolutely;  and  farther,  in  the  case  of 
judgments  of  courts  of  admiralty,  they  are  also  held  to  be  conclusive 
evidence  of  the  facts  stated  in  the  decree  to  have  been  found  by  the 
court,  as  the  basis  of  the  decree.  And  perhaps  the  judgments  of 
municipal  courts,  acting  in  rem^  within  the  sphere  of  their  jurisdic- 
tion, would  have  the  same  effect. 

These  proceedings  that  have  been  mentioned  are  purely  in  rem. 
But,  besides  these,  there  is  another  class  of  cases,  which  may  per- 
haps be  considered,  to  some  extent,  proceedings  in  rem^  though  in 
form  they  are  proceedings  inter  partes.  An  attachment  of  property 
in  this  State,  where  the  court  has  jurisdiction  of  the  property,  but 
not  of  the  person  of  the  defendant,  and  a  sale  of  it  (or  a  levy  upon 
it,  if  it  be  real  estate),  on  execution,  is  in  the  nature  of  a  proceed- 
ing in  rem.  The  judgment,  if  the  defendant  have  no  notice,  would 
be  treated  as  a  nullity  out  of  our  jurisdiction,  so  far  as  the  person 
of  the  defendant  was  concerned;  though  it  would  be  held  binding, 
as  between  the  parties,  so  far  as  regarded  the  property,  as  a  pro- 


206  WOODRUFF    V.    TAYLOR.  [CHAP.    III. 

ceeding  in  rem.  The  defendant  would  not,  1  apprehend,  be  allowed 
to  recover  back  bis  property  in  another  jurisdiction.  The  status  of 
the  property,  as  between  the  plaintiff  and  defendant,  would  be  held 
to  have  been  determined  by  the  proceeding.  But  the  proceeding 
would  not  in  any  way  affect  the  status  of  the  property  as  to  any 
other  persons  than  the  parties  to  the  record  and  those  claiming  by 
them. 

Our  proceeding  of  foreign  attachment  partakes,  perhaps  still  more, 
of  the  nature  of  a  proceeding  ui  rem  ;  but  its  operation  as  such  is 
also  of  a  limited  character.  The  suit  is  hiter  partes,  and,  as  a  pro- 
ceeding m  rem,  it  must  be  confined  to  such  parties.  A  process  is 
issued  in  favor  of  a  plaintiff,  declaring  against  his  debtor  residing 
in  another  government,  and  alleging,  also,  that  another  person  here, 
named  in  the  process  and  styled  a  trustee,  has  goods  in  his  hands 
belonging  to  the  plaintiff's  debtor,  or  is  indebted  to  him,  and  pray- 
inof  that  the  goods  or  debt  found  here  may  be  declared  forfeited  to 
the  plaintiff,  or,  in  other  words,  that  the  property  here  may  be 
applied  in  payment  of  the  plaintiff's  demand.  I  conceive  the  court 
here  has  jurisdiction  of  the  property  in  the  hands  of  the  trustee,  or 
the  debt  due  from  him,  —  it  being  found  in  our  jurisdiction,  — and 
that  the  court  may  proceed  upon  it  in  rem.  After  publication,  by 
which  the  debtor  is  constructively  notified  of  the  proceeding  against 
his  property,  the  court  adjudicates  upon  the  property  and  declares 
that  it  shall  be  delivered,  or  paid,  to  the  plaintiff,  to  be  applied  upon 
his  debt.  I  think  such  adjudication  changes  the  status  of  the  prop- 
erty, or  debt,  and  deprives  the  principal  debtor  of  all  title  to  it; 
that  such  adjudication  should  be  held  binding  and  conclusive  upon 
all  the  parties  to  the  proceeding;  that  the  foreign  creditor  of  the 
trustee,  having  placed  his  property,  or  his  credit,  within  this  juris- 
diction, should  be  bound  by  its  forfeiture,  declared  by  our  courts; 
and  that  he  should  be  barred,  in  any  other  jurisdiction,  from  prose- 
cuting his  claim  against  the  trustee.  But  the  operation  of  this  pro- 
ceeding in  rem  must  be  limited  to  the  parties  to  it,  and  cannot  in 
any  manner  affect  the  right  or  interest  of  any  other  person,  having 
an  independent  and  adverse  claim  to  the  goods,  or  debt,  which  was 
the  sui)ject-matter  of  the  suit.  The  court  does  not  pretend  to  notify! 
such  adverse  claimant,  either  constructively,  or  otherwise;  nor  does 
the  proceeding  profess  to  determine  the  rights  of  any  other  persons) 
than  those  who  are  parties  of  record  to  it;  and  it  can,  consequent!}', 
affect  the  rights  of  no  other  persons. 

The  distinction  between  proceedings  purely  in  rem  and  those  of  a 
limited  character,  which  have  been  mentioned,  I  think  is  strongly 
and  plainly  marked.     TJie  object  and  purpf)se^f  a^roceecling  purely 

in  rem^  i 8 JQ_ ascertain  the  flgEOJljyeixr^*'^'^*'^  <^!'i:l^''^lLi  ^°f^  ^^  ^^ 
instituted  on  an  allegation,  th^^  the  title  of  the  former  owner,  who- 
ever he  may  be,  has  become  cnt^estcd;  and  notice  of  the  proceeding 
is  given  to  the  whole  world  to  appear  and  make  claim  to  it.     From 


SECT.    III.]  WOODRUFF   V.   TAYLOR.  207 

the  nature  of  the  case  the  notice  is  constructive,  only,  as  to  the 
greater  part  of  the  world;  but  it  is  such  as  the  law  presumes  -will  be 
most  likely  to  reach  the  persons  interested,  and  such  as  does,  in  point 
of  fact,  generally  reach  them.  In  the  case  of  a  seizure  for  the  viola- 
tion of  our  revenue  laws,  the  substance  of  the  libel,  which  states  the 
ground  on  which  the  forfeiture  is  claimed,  with  the  order  of  the  court 
thereon,  specifying  the  time  and  place  of  trial,  is  to  be  published  in 
a  newspaper,  and  posted  up  a  certain  number  of  days;  and  proclama- 
tion is  also  made  in  court  for  all  persons  interested  to  appear  and 
contest  the  forfeiture.  And  in  every  court  and  in  all  countries, 
whose  judgments  are  respected,  notice  of  some  kind  is  given.  It  is, 
indeed,  as  I  apprehend,  just  as  essential  to  the  validity  of  a  judg- 
ment in  rern^  that  constructive  notice,  at  least,  should  appear  to 
have  been  given,  as  that  actual  notice  should  appear  upon  the 
record  of  a  judgment  in  personam.  A  proceeding  professing  to 
determine  the  right  of  property  where  no  notice,  actual  or  construc- 
tive, is  given,  whatever  else  it  might  be  called,  would  not  be  entitled 
to  be  dignified  with  the  name  of  a  judicial  proceeding.  It  would  be 
a  mere  arbitrary  edict,  not  to  be  regarded  anywhere  as  the  judgment 
of  a  court.     Bradstreet  v.  Neptune  Ins.  Co.,  3  Sumn.  607. 

The  limited  proceedings  in  rem.,  before  mentioned,  are  not  based  ' 
on    any  allegation  that  the  right    of    property  is    to    be  determined 
between  any  other  persons  than  the  parties  to  the  suit;  no  notice  is 
sought  to  be  given  to  any  other  persons;    and  the  judgment  being' 
only  as  to  the  status  of  the  property  as  between  the  parties  of  record, 
it  is,  as  to  all  others  persons,  a  mere  nullity. 

If  we  apply  these  principles  to  the  record  pleaded  in  bar  in  this 
case,  I  think  it  will  be  impossible  to  maintain  that,  as  to  the  plain- 
tiff Woodruff,  it  was  a  proceeding  in  rem.(  There  was  no  allegation 
that  the  status  of  the  property,  levied  upon  as  the  property  of  Phelps 
Smith,  or  the  avails  of  it,  when  paid  into  court,  was  to  be  adjudi- 
cated as  to  him,  and  there  was  no  notice,  actual  or  constructive,  to 
him  to  appear  and  make  any  claim  to  it.  ^  The  judgment  was  ren- 
dered in  a  suit  inter  partes,  in  which  Taylor  was  plaintiff  and  Phelps 
Smith  defendant;  and  though  it  bound  the  property  as  between  them, 
it  could  affect  the  rights  of  no  other  person.  It  is  precisely  the  case 
of  a  levy  of  an  execution,  in  this  State,  upon  personal  property,  as 
that  of  ^the  judgment  debtor,  of  which  property  some  third  person 
claims  to  be  the  owner.  If  such  third  person  were  to  bring  trespass 
against  the  judgment  creditor  for  making  the  levy,  I  do  not  perceive 
why  such  creditor,  with  the'same  propriety  as  the  defendant  in  this 
case,  might  not  plead  his  levy  and  sale  in  bar  as  a  proceeding  in 
rem.  The  record  in  this  case,  indeed,  shows  that  the  levy  was 
made  in  the  presence  of  a  Becors,  which  a  levy  in  this  State  would 
not;  but  I  apprehend  the  high  standing  or  official  character  of  the 
witnesses  to  a  trespass  would  not  purge  its  illegality,  or  bar  a  right 
of  recovery. 


208  WOODRUFF   V.   TAYLOR.  [CIIAP.    111. 

But  the  record  of  the  judgment  in  the  King's  Bench  wholly  fails  to 
show  that  the  right  of  the  plaintiff  in  this  suit  to  the  property  was 
attempted  to  be  adjudicated;  aud  there  is  no  averment  in  the  plea 
that  it  was  adjudicated.  The  plea  states,  in  substance,  that,  by  the 
law  of  Canada,  it  would  have  been  adjudicated  if  the  plaintiff  had 
appeared  in  the  court  and  made  claim  to  the  property.  And  by  the 
facts  set  forth  in  the  plea  we  are  given  clearly  to  understand  that  it 
was  not  adjudicated,  because  the  plaintiff  did  not  so  make  his  claim. 
It  would  therefore  be  impossible  to  maintain  this  plea,  as  furnishing 
evidence  that  the  matter  in  controversy  is  ?-es  adjudicatu,  even  if 
the  plaintiff  had  had  notice  of  the  proceeding.  If  the  plea  could, 
under  such  circumstances,  be  sustained,  even  in  the  courts  of 
.  Canada,  it  would  not  be  because  the  matter  had  been  adjudicated, 
but  because  the  plaintiff,  having  neglected  to  have  his  claim  adju- 
dicated at  the  time  and  in  the  manner  pointed  out  by  the  laws  of 
that  province,  was  thereby  barred  of  any  other  remedy.  The  plea 
does  not  aver  that  the  property  of  the  plaintiff,  being  found  in  the 
possession  of  Phelps  Smith,  in  Canada,  might  for  that  reason,  or 
for  any  other  reason,  be  legally  levied  upon  and  sold  as  the  property 
of  Smith.  It  in  effect  admits  that  the  original  levy  upon  the  plain- 
tiff's property  was  wrongful,  but  proceeds  upon  the  ground  that,  by 
reason  of  the  subsequent  proceedings,  the  wrong  cannot  now  be  re- 
dressed. The  original  right  of  action  of  the  plaintiff  is  conceded, 
but  it  is  insisted  that,  by  something  arising  ex  post  facto,  his 
remedy  is  gone.  It  is  not  a  bar  to  the  right  that  is  relied  upon,  but 
a  bar  to  the  redress.  This  ground  of  defence  would  therefore  seem 
to  rest  upon  a  local  law  of  the  province  of  Canada,  which  affects  the 
plaintiff's  remedy  only,  but  which,  by  the  well-settled  doctrine  of  the 
common  law,  can  be  of  no  avail  when  a  remedy  is  sought  in  another 
jurisdiction. 

But  it  is  unnecessary  to  consider  farther  what  might  have  been 
the  effect  of  the  defendant's  plea,  if  the  plaintiff,  at  the  time,  had 
been  a  resident  of  Canada;  because  it  seems  quite  clear  that  it  can 
have  no  effect  whatever  upon  the  cause  of  action  of  one  who  was, 
during  the  whole  proceeding,  a  resident  citizen  of  another  govern- 
ment, not  subject  to  the  law  of  the  province,  and  who  had  no  notice 
of  the  proceeding.     Story's  Confl.  of  Laws,  487. 

The  result  is,  that  the  judgment  of  the  county  court  is  reversed, 
the  replication  is  held  sufficient,  and  the  case  is  remanded  to  the 
county  court  for  the  trial  of  the  issue  of  fact.^ 

^  Ace.  Putnam  v.  McDougall,  47  Vt.  478.  —  Ed. 


SECT.  III.l  HARUIS    V.    BALK. 


209 


HARRIS    V.   BALK. 

Supreme  Court  of  the  United  States.     1905. 

{Reported  198  U.  S.  215.] 

The  facts  are  as  follows  :  The  plaintiff  in  error,  Harris,  was  a  resident 
of  North  Carolina  at  the  time  of  the  commencement  of  this  action  in  1896, 
and  prior  to  that  time  was  indebted  to  the  defendant  in  error,  Balk,  also 
a  resident  of  North  Carolina,  in  the  sum  of  $180,  for  money  borrowed 
from  Balk  by  Harris  during  the  year  1896,  which  Harris  verbally  prom- 
ised to  repay,  but  there  was  no  written  evidence  of  the  obligation. 
During  the  year  above  mentioned  one  Jacob  Epstein,   a  resident  of 
Baltimore,  in  the  State  of  Maryland,  asserted  that  Balk  was  indebted 
to  him  in  the  sum  of  over  $300.     In  August,   1896,   Harris  visited 
Baltimore  for  the  purpose  of  purchasing  merchandise,   and  while  he 
was  in  that  city  temporarily  on  August  6,  1896,  Epstein  caused  to  be 
issued  out  of  a  proper  court  in  Baltimore  a  foreign  or  non-resident 
writ  of  attachment  against  Balk,  attaching  the  debt  due  Balk  from 
Harris,  which  writ  the  sheriff  at  Baltimore  laid  in  the  hands  of  Harris, 
with  a  summons  to  appear  in  the  court  at  a  day  named.    With  that  at- 
tachment, a  writ  of  summons  and  a  short  declaration  against  Balk  (as 
provided  by  the  Maryland  statute)  were  also  delivered  to  the  sheriff  and 
by  him  set  up  at  the  court  house  door,  as  required  by  the  law  of  Mary- 
land.   Before  the  return  day  of  the  attachment  writ  Harris  left  Baltimore 
and  returned  to  his  home  in  North  Carolina.     He  did  not  contest  the 
garnishee  process,  which  was  issued  to  garnish  the  debt  which  Harris 
owed  Balk.     After  his  return  Harris  made  an  affidavit  on  August  11, 
1896,  that  he  owed  Balk  $180,  and  stated  that  the  amount  had  been 
attached  by  Epstein  of  Baltimore,  and  by  his  counsel  in  the  Maryland 
proceeding  Harris  consented  therein  to  an  order  of  condemnation  against 
him  as  such  garnishee  for  $180,  the  amount  of  his  debt  to  Balk.    Judg- 
ment was  thereafter  entered  against  the  garnishee  and  in  favor  of  the 
plaintiff,  Epstein,  for  $180.     After  the  entry  of  the  garnishee  judgment, 
condemning  the  $180  in  the  hands  of  the  garnishee,  Harris  paid  the 
amount  of  the  judgment  to  one  Warren,  an  attorney  of  Epstein,  residing 
in  North  Carolina.     On  August  11,  1896,  Balk  commenced  an  action 
against  Harris  before  a  justice  of  the  peace  in  North  Carolina,  to  recover 
the  $180  which  he  averred  Harris  owed  him.     The  plaintiff  in  error,  by 
way  of  answer  to  the  suit,  pleaded  in  bar  the  recovery  of  the  Maryland 
judgment  and  his  payment  thereof,  and  contended  that  it  was  conclusive 
against  the  defendant  in  error  in  this  action,  because  that  judgment 
was  a  valid  judgment  in  Maryland,  and  was  therefore  entitled  to  full 
faith  and  credit  in  the  courts  of  North  Carolina.     This  contention  was 
not  allowed  by  the  trial  court,  and  judgment  was  accordingly  entered 
against  Harris  for  the  amount  of  his  indebtedness  to  Balk,  and  that 


14 


210  HARRIS    V.    BALK.  [CHAP.  III. 

judgment  was  affirmed  by  the  Supreme  Court  of  North  Carolina.  The 
ground  of  such  judgment  was  that  the  Maryland  court  obtained  no  juris- 
diction to  attach  or  garnish  the  debt  due  from  Harris  to  Balk,  because 
Harris  was  but  temporarily  in  the  State,  and  the  situs  of  the  debt  was 
in  North  Carolina. 

Pkckham,  J.  The  State  court  of  North  Carolina  has  refused  to  give 
any  effect  in  this  action  to  the  Maryland  judgment ;  and  the  Federal 
question  is,  whether  it  did  not  thereby  refuse  the  full  faith  and  credit 
to  such  judgment  which  is  required  by  the  Federal  Constitution.  If 
the  Maryland  court  had  jurisdiction  to  award  it,  the  judgment  is  valid 
and  entitled  to  the  same  full  faith  and  credit  in  North  Carolina  that  it 
has  in  Maryland  as  a  valid  domestic  judgment. 

The  defendant  in  error  contends  that  the  Maryland  court  obtained 
no  jurisdiction  to  award  the  judgment  of  condemnation  because  the 
garnishee,  although  at  the  time  in  the  State  of  Maryland,  and  personally 
served  with  process  therein,  was  a  non-resident  of  tliat  State,  only  cas- 
ually or  temporarily  within  its  boundaries ;  that  the  situs  of  the  debt 
due  from  Harris,  the  garnishee,  to  the  defendant  in  error  herein  was  in 
North  Carolina,  and  did  not  accompany  Harris  to  Maryland ;  that,  con- 
sequently, Harris,  though  within  the  State  of  ^Maryland,  had  not  pos- 
session of  any  property  of  Balk,  and  the  Maryland  State  court  therefore 
obtained  no  jurisdiction  over  anj-  property  of  Balk  in  the  attachment 
proceedings,  and  the  consent  of  Harris  to  the  entry  of  the  judgment 
was  immaterial.  The  plaintiff  in  error,  on  the  contrary,  insists  that, 
though  the  garnishee  were  but  temporarily  in  Maryland,  jet  the  laws 
of  that  State  provide  for  an  attachment  of  this  nature,  if  the  debtor,  the 
garnishee,  is  found  in  the  State  and  the  court  obtains  jurisdiction  over 
him  by  the  service  of  process  therein  ;  that  the  judgment,  condemning 
the  debt  from  Harris  to  Balk,  was  a  valid  judgment,  provided  Balk 
could  himself  have  sued  Harris  for  the  debt  in  Maryland.  This,  it  is 
asserted,  he  could  have  done,  and  the  judgment  was  therefore  entitled 
to  full  faith  and  credit  in  the  courts  of  North  Carolina. 

The  cases  holding  that  the  State  court  obtains  no  jurisdiction  over 
the  garnishee  if  he  be  but  tem[)orarily  within  the  State,  proceed  upon 
the  theory  that  the  situs  of  tlie  debt  is  at  the  domieil  either  of  the 
creditor  or  of  the  debtor,  and  that  it  does  not  follow  the  debtor  in  his 
casual  or  temporary  journey  into  another  State,  and  the  garnishee  has  no 
possession  of  any  property  or  credit  of  the  principal  debtor  in  the  foreign 
State. 

We  regard  tlie  contention  of  the  plaintiff  in  error  as  the  correct  one. 
The  autliorities  in  tlie  various  State  courts  ui)on  this  question  are  not  at 
all  in  harmony.  They  have  been  collected  by  counsel,  and  will  be  found 
in  their  respective  briefs,  and  it  is  not  necessary  to  here  enlarge  upon 
them. 

Attachment  is  the  creatin-c  of  the  local  law  ;  that  is,  unless  there  is 
a  law  of  the  State  providing  for  and  permitting  the  attachment  it  can- 


SECT.    III.j  HARRIS    V.    BALK.  211 

not  be  levied  there.  If  there  be  a  law  of  the  State  providing  for  the 
attachment  of  the  debt,  then  if  the  garnishee  be  found  in  that  State, 
and  process  be  personally  served  upon  him  therein,  we  think  the  court 
thereby  acquires  jurisdiction  over  him,  and  can  garnish  the  debt  due  fromi 
him  to  the  debtor  of  the  plaiutitfand  condemn  it  provided  the  garnishee| 
could  himself  be  sued  by  his  creditor  in  that  State.  We  do  not  see  how 
the  question  of  jurisdiction  vel  non  can  properly  be  made  to  depend  upon 
the  so-called  original  situs  of  the  debt,  or  upon  the  character  of  the  stay 
of  the  garnishee,  whether  temporary  or  permanent,  in  the  State  whei-e 
the  attachment  is  issued.  Power  over  the  person  of  the  garnishee 
confers  jurisdiction  on  the  courts  of  the  State  where  the  writ  issues. 
Blackstone  v.  Miller,  188  U.  S.  189,  206.  If,  while  temporarily  there, 
his  creditor  might  sue  him  there  and  recover  the  debt,  then  he  is  liable 
to  process  of  garnishment,  no  matter  where  the  situs  of  the  debt  was 
originally.  "We  do  not  see  the  materiality  of  the  expression  "  situs  of 
the  debt,"  when  used  in  connection  with  attachment  proceedings.  If 
by  situs  is  meant  the  place  of  the  creation  of  the  debt,  that  fact  is  im- 
material. If  it  be  meant  that  the  obligation  to  pay  the  debt  can  only 
be  enforced  at  the  situs  thus  fixed,  we  think  it  plainly  untrue.  The  ob- 
ligation of  the  debtor  to  pay  his  debt  clings  to  and  accompanies  him 
wherever  he  goes.  He  is  as  much  bound  to  pay  his  debt  iu  a  foreign 
State  when  therein  sued  upon  his  obligation  by  his  creditor,  as  he  was 
in  the  State  where  the  debt  was  contracted.  We  speak  of  ordinary 
debts,  such  as  the  one  in  this  case.  It  would  be  no  defence  to  such 
suit  for  the  debtor  to  plead  that  he  was  only  in  the  foreign  State  casu- 
ally or  temporarily.  His  obligation  to  pAy  would  be  the  same  whether 
he  was  there  in  that  way  or  with  an  intention  to  remain.  It  is  nothing 
but  the  obligation  to  pay  which  is  garnished  or  attached.  This  obliga- 
tion can  be  enforced  b}-  the  courts  of  the  foreign  State  after  personal  ser- 
vice of  process  therein,  just  as  well  as  b}-  the  courts  of  the  domicil  of 
the  debtor.  If  the  debtor  leave  the  foreign  State  without  appearing,  a 
judgment  b}"  default  ma}-  be  entered,  upon  which  execution  may  issue, 
or  the  judgment  may  be  sued  upon  in  any  other  State  where  the  debtor 
might  be  found.  In  such  case  the  situs  is  unimportant.  It  is  not  a 
question  of  possession  in  the  foreign  State,  for  possession  cannot  be 
taken  of  a  debt  or  of  the  obligation  to  pay  it,  as  tangible  property 
might  be  taken  possession  of.  Notice  to  the  debtor  (garnishee)  of  the 
commencement  of  the  suit,  and  notice  not  to  pay  to  his  creditor,  is  all 
that  can  be  given,  whether  the  garnishee  be  a  mere  casual  and  tempo- 
rary- comer,  or  a  resident  of  the  State  where  the  attachment  is  laid. 
His  obligation  to  pay  to  his  creditor  is  thcreb}-  arrested  and  a  lien 
created  upon  the  debt  itself.  Gaboon  v.  Morgan,  38  Vt.  234,  236  ; 
National  Fire  Ins.  Co.  v.  Chambers,  53  N.  J.  Eq.  468,  483.  We  can 
see  no  reason  why  the  attachment  .should  not  be  thus  laid,  provided 
the  creditor  of  the  garnishee  could  himself  sue  in  that  State  and  its 
laws  permitted  the  attachment. 


212  HARKIS   V.    BALK.  [CHAP.  III. 

There  can  be  no  doubt  that  Balk,  as  a  citizen  of  the  State  of  North 
Carolina,  bad  the  right  to  sue  Harris  in  Maryland  to  recover  the  debt 
which  Harris  owed  him.  Being  a  citizen  of  North  Carolina,  he  was 
entitled  to  all  the  privileges  and  immunities  of  citizens  of  the  several 
States,  one  of  which  is  the  right  to  institute  actions  in  the  courts  of  an- 
other State.  The  law  of  Maryland  provides  for  the  attachment  of  credits 
in  a  case  like  this.  See  sections  8  and  10  of  Article  9  of  the  Code  of 
Public  General  Laws  of  Maryland,  which  provide  that,  upon  the  proper 
facts  being  shown  (as  stated  in  the  article),  the  attachment  may  be  sued 
out  against  lands,  tenements,  goods,  and  credits  of  the  debtor.  Section 
10  particularly  provides  that  "  Any  kind  of  property  or  credits  belong- 
ing to  the  defendant,  in  the  plaintiff's  own  hands,  or  in  the  hands  of 
any  one  else,  may  be  attached  ;  and  credits  may  be  attached  whicli 
shall  not  then  be  due."  Sections  11,  12,  and  13  of  the  above-mentioned 
article  provide  the  general  practice  for  levying  the  attachment  and 
the  proceedings  subsequent  thereto.  Where  money  or  credits  are 
attached  the  inchoate  lien  attaches  to  the  fund  or  credits  when  the 
attachment  is  laid  in  the  hands  of  the  garnishee,  and^  the  judgment 
condemning  the  amount  in  his  hands  becomes  a  personal  judgment 
against  him.  Buschman  v.  Hanna,  72  Md.  1,  5,  6.  Section  34  of  the 
same  Maryland  Code  provides  also  that  this  judgment  of  condemnation 
against  the  garnishee,  or  payment  by  him  of  such  judgment,  is  pleadable 
in  bar  to  an  action  brought  against  him  b}'  the  defendant  in  the  attach- 
ment suit  for  or  concerning  the  property  or  credits  so  condemned. 

It  thus  appears  that  Balk  could  have  sued  Harris  in  Maryland  to  re- 
cover his  debt,  notwithstanding  the  temporary  character  of  Harris'  stay 
there ;  it  also  appears  that  the  municipal  law  of  Maryland  permits  the 
debtor  of  the  principal  debtor  to  be  garnished,  and  therefore  if  the  court 
of  the  State  where  the  garnishee  is  found  obtains  jurisdiction  over  him, 
through  the  service  of  process  upon  him  within  the  State,  then  the 
judgment  entered  was  a  valid  judgment.  See  Minor  on  Conflict  of 
Laws,  section  125,  where  the  various  theories  regarding  the  subject  are 
stated  and  many  of  the  authorities  cited.  He  there  cites  many  cases  to 
prove  the  correctness  of  the  theory  of  the  validity  of  the  judgment  where 
^the  municipal  law  permits  the  debtor  to  be  garnished,  although  his  being 
within  the  State  is  but  temporary. >  See  pp.  289,  290.  This  is  the  doc- 
trine which  is  also  adopted  in  Morgan  r.  Neville,  74  Pa.  St.  52,  by  the 
Supreme  Court  of  Pennsylvania,  per  Agnew,  J.,  in  delivering  the  opin- 
ion of  that  court.  The  same  principle  is  held  in  AVyeth  Hardware  &c. 
Co.  V.  Lang,  127  Mo.  242,  247;  in  Lancashire  Lisurance  Co.  /'.  Corbetts, 
1G5  111.  592  ;  and  in  Harvey  v.  Great  Northern  Ry.  Co.,  50  Minn.  405, 
406,  407;  and  to  the  same  effect  is  Embrec  c.  Hanna,  5  Johns.  (N.  Y.) 
101  ;  also  Savin  v.  Bond,  57  Md.  228,  where  the  court  held  that  the  at- 
tachment was  properly  served  ui)on  a  party  in  the  District  of  Columbia 
while  he  was  temporarily  there;  that  as  his  debt  to  the  appellant  was 
payable  wherever  he  was   found,   and  process  had   been  served  upon 


SECT.  III.]  HAEEIS   V.    BALK.  213 

liiiu  in  tlie  District  of  Columbia,  the  Supreme  Court  of  tiie  District  had 
unquestioned  jurisdiction  to  render  judgment,  and  the  same  havino-  been 
paid,  there  was  no  error  in  granting  the  prayer  of  the  appellee  that  such 
judgment  was  conclusive.  The  case  in  138  N.  Y.  209,  Douglass  v.  In- 
surance Co.,  is  not  contrary'  to  this  doctrine.  The  question  there  was 
not  as  to  the  temporary  character  of  the  presence  of  the  garnishee  in 
the  State  of  Massachusetts,  but,  as  the  garnishee  was  a  foreign  corpora- 
tion, it  was  held  that  it  was  not  within  the  State  of  Massachusetts  so  as 
to  be  liable  to  attachment  by  the  service  upon  an  agent  of  the  compan}' 
within  that  State.  The  general  principle  laid  down  in  Embree  v.  Hanna, 
5  Johns.  (N.  Y.)  101,  was  recognized  as  correct.  There  are,  as  we  have 
said,  authorities  to  the  contrary,  and  the}'  cannot  be  reconciled. 

It  seems  to  us,  however,  that  the  principle  decided  in  Chicago,  R.  I. 
&;c.  Ry.  Co.  v.  Sturm,  174  U.  S.  710,  recognizes  the  jurisdiction,  although 
in  that  case  it  aj^pears  that  the  presence  of  the  garnishee  was  not  merely 
a  temporary  one  in  the  State  where  the  process  was  served.  In  that  case 
it  was  said  :  "  '  All  debts  are  pa3able  everywhere,  unless  there  be  some 
special  limitation  or  provision  in  respect  to  the  payment;  the  rule  beino- 
that  debts  as  such  have  no  locus  or  situs^  but  accompany  the  creditor 
everywhere,  and  authorize  a  demand  upon  the  debtor  everywhere.' 
2  Parsons  on  Contracts,  8th  ed.,  702  (9th  ed.,  739).  The  debt  involved 
in  the  pending  case  had  no  '  special  limitation  or  provision  in  respect  to 
payment.'  It  was  payable  generallj-,  and  could  have  been  sued  on  in 
Iowa,  and  therefore  was  attachable  in  Iowa.  This  is  the  principle  and 
effect  of  the  best  considered  cases,  —  the  inevitable  effect  from  the  na- 
ture of  transitory'  actions  and  the  purpose  of  foreign  attachment  laws 
if  we  would  enforce  that  purpose."  (  The  case  recognizes  the  right  of 
the  creditor  to  sue  in  the  State  where  the  debtor  may  be  found,  even  if 
but  temporarih'  there,  and  upon  that  right  is  built  the  further  right  of 
the  creditor  to  attach  the  debt  owing  by  the  garnishee  to  his  creditor.  > 
The  importance  of  the  fact  of  the  right  of  the  original  creditor  to  sue 
his  debtor  in  the  foreign  State,  as  affecting  the  right  of  the  creditor  of 
that  creditor  to  sue  the  debtor  or  garnishee,  lies  in  the  nature  of  the 
attachment  proceeding.  '  The  plaintiff,  in  such  proceeding  in  the  foreign 
State,  is  able  to  sue  out  the  attachment  and  attach  the  debt  due  from 
the  garnishee  to  his  (the  garnishee's)  creditor,  because  of  the  fact  that 
the  plaintiff  is  really  in  such  proceeding  a  representative  of  the  ci'editor 
of  the  garnishee,  and  therefore  if  such  creditor  himself  had  the  right  to 
commence  suit  to  recover  the  debt  in  the  foreign  State  his  representative 
has  the  same  right,  as  representing  him,  and  may  garnish  or  attach  the 
debt,  provided  the  municipal  law  of  the  State  where  the  attachment 
was  sued  out  permits  it.    y 

It  seems  to  us,  therefore,  that  the  judgment  against  Harris  in  Mary- 
land, condemning  the  $180  which  he  owed  to  Balk,  was  a  valid  judg- 
ment, because  the  court  had  jurisdiction  over  the  garnishee  by  personal 
service  of  process  witliin  the  State  of  Maryland. 


22^4  HARRIS   V.    BALK.  [CHAP.  III. 

It  ought  to  te  and  it  is  the  object  of  courts  to  prevent  the  payment 
of  any  debt  twice  over.  Thus  if  Harris,  owing  a  debt  to  Balk,  paid  it 
under  a  vahd  judgment  against  him,  to  Epstein,  he  certainly  ought  not 
to  be  compelled  to  pay  it  a  second  time,  but  should  have  the  right  to 
plead  his  payment  under  the  Maryland  judgment.  It  is  objected,  how- 
ever, that  the  payment  by  Harris  to  Epstein  was  not  under  legal  com- 
pulsion. Harris'  in  truth  owed  the  debt  to  Balk,  which  was  attached 
by  Epstein.  He  had,  therefore,  as  we  have  seen,  no  defence  to  set  up 
ao-ainst  the  attachment  of  the  debt.  Jurisdiction  over  him  personally 
had  been  obtained  by  the  Maryland  court.  As  he  was  absolutely  with- 
out defence,  there  was  no  reason  why  he  should  not  consent  to  a  judg- 
ment impounding  the  debt,  which  judgment  the  plaintiff  was  legally 
entitled  to,  and  which  he  could  not  prevent.  There  was  no  %ierely 
voluntary  payment  within  the  meaning  of  that  phrase  as  a[)plicable 

here. 

But  most  rights  may  be  lost  by  negligence,  and  if  the  garnishee  were 
t^uilty  of  negligence  in  the  attachment  proceeding,  to  the  damage  of 
Balk,  he  ought  not  to  be  permitted  to  set  up  the  judgment  as  a  defence. 
Thus  it  is  recognized  as  the  duty  of  the  garnishee  to  give  notice  to  his 
own  creditor,  if  he  would  protect  himself,  so  that  the  creditor  may  have 
the  opportunity  to  defend  himself  against  the  claim  of  the  person  suing 
out  the  attachment.  This  duty  is  affirmed  in  the  case  above  cited  of 
Morgan  v.  Neville,  74  Pa.  St.  52,  and  is  spoken  of  in  Railroad  Co.  v. 
Sturm,  sxipra,  although  it  is  not  therein  actually  decided  to  be  neces- 
sary, because  in  that  case  notice  was  given  and  defence  made.  While 
the  want  of  notification  by  the  garnishee  to  his  own  creditor  may  have  j 
no  effect  upon  the  validity  of  the  judgment  against  the  garnishee  (the 
proper  publication  being  made  by  the  plaintiff),  we  think  it  has  and 
ought  to  have  an  effect  upon  the  right  of  the  garnishee  to  avail  himself 
f  of  the  prior  judgment  and  his  payment  thereunder.  This  notification 
by  the  garnishee  is  for  the  purpose  of  making  sure  that  his  creditor 
shall  have  an  opportunity  to  defend  the  claim  made  against  him  in  the 
attachment  suit.  Fair  dealing  requires  this  at  the  hands  of  the  gar- 
nishee. In  this  case,  while  neither  the  defendant  nor  the  garnishee 
appeared,  the  court,  while  condemning  the  credits  attached,  could  not, 
bv  the  terms  of  the  Maryland  statute,  issue  the  writ  of  execution  unless 
the  plaintiff  gave  bond  or  sufficient  security  before  the  court  awarding 
the  execution,  to  make  restitution  of  the  money  paid  if  the  defendant 
should,  at  any  time  within  a  year  and  a  day,  appear  in  the  action  and 
show  that  the  plaintiff's  claim,  or  some  part  thereof,  was  not  due  to  the 
plaintiff.  The  defendant  in  error.  Balk,  had  notice  of  this  attachment, 
certainly  within  a  few  days  after  the  issuing  thereof  and  the  entry  of 
judgment  thereon,  because  he  sued  the  plaintiff  in  error  to  recover  his 
debt  within  a  few  days  after  his  (Harris')  return  to  North  Carolina,  in 
which  suit  tlie  judgment  in  Maryland  was  set  up  by  Harris  as  a  plea  in 
bar  to  Balk's  claim.    Balk,  therefore,  had  an  opportunity  for  a  year  and 


SECT.   IV.]  LE   MESURIER   V.   LE    MESURIER.  215 

a  clay  after  the  entry  of  the  judgment  to  htigate  the  question  of  his  lia- 
bilit}-  in  the  Maryland  court  and  to  show  tbat  he  did  not  owe  the  debt, 
or  some  part  of  it,  as  was  claimed  by  Epstein.  He,  however,  took  no 
proceedings  to  that  end,  so  far  as  the  record  shows,  and  the  reason  may 
be  supposed  to  be  that  he  could  not  successfully  defend  the  claim,  be- 
cause he  admitted  in  this  case  that  he  did,  at  the  time  of  the  attachment 
proceeding,  owe  Epstein  some  $344. 

Generally-,  though,  the  failure  on  the  part  of  the  garnishee  to  give 
proper  notice  to  his  creditor  of  the  levying  of  the  attachment  would  be 
such  a  neglect  of  duty  on  the  part  of  the  garnishee  which  he  owed  to 
his  creditor  as  would  prevent  his  availing  himself  of  the  judgment  in 
the  attachment  suit  as  a  bar  to  the  suit  of  his  creditor  against  himself, 
which  might  therefore  result  in  his  being  called  upon  to  pay  the  debt 
twice. 

The  judgment  of  the  Supreme  Court  of  North  Carolina  must  be  re- 
versed and  the  cause  remanded  for  further  proceedings  not  inconsistent 
with  the  opinion  of  this  court.  Reversed. 

Mr.  Justice  Harlan  and  Mr.  Justice  Day  dissented. 


SECTION   IV. 

JURISDICTION    FOR   DIVORCE. 


LE   MESURIER   v.    LE   MESURIER. 
Judicial  Committee  of  the  Privy  Council.     1895. 

[^Reported  [1893]  Appeal  Cases,  517.] 

Appeal  from  the  Supreme  Court  of  Ce3-lon,  which  dismissed  appel= 
iant's  libel  for  divorce  on  the  ground  of  lack  of  jurisdiction.  At 
the  time  of  the  marriage  (which  was  solemnized  in  England)  appel 


216  LE    MESURIER    V.   LE    MESURIER.  [CHAP.  III. 

.■ant,  the  husband,  was  and  has  since  remained  a  resident  of  Ceylon, 
but  was  then  and  has  since  remained  domiciled  in  England.  The 
respondent  was  a  Frenchwoman.^ 

The  judgment  of  their  Lordships  was  delivered  by  Lord  Watson. 

When  carefully  examined,  neither  the  English  nor  the  Scottish 
decisions  are,  in  their  Lordships'  opinion,  sufficient  to  establish  the 
proposition  that,  in  either  of  these  countries,  there  exists  a  recog- 
nized rule  of  general  law  to  the  effect  that  a^_so-called  matrimonial 
domicile  gives  iurisdiction  to  dissolve  marriage. 

ToUemache  /•.  Tollemache,  1  Sw.  &  Tr.  557,  which  was  decided  by 
three  judges  in  1859,  shortly  after  the  passing  of  the  Divorce  Act, 
appears  to  be  an  authority  to  the  contrary.  The  learned  judges 
sustained  the  jurisdiction  of  the  English  court,  which  was  the  forum 
of  the  husband's  domicile,  and  disregarded  as  incompetent  a  decree 
of  the  Court  of  Session  dissolving  his  marriage,  although  he  had  a 
matrimonial  domicile  in  Scotland,  where  he  had  bo7ia  fide  resided  for 
four  years  with  his  wife,  neither  casually  nor  as  a  traveller.  Then 
in  Brodie  v.  Brodie,  2  Sw.  &  Tr.  259,  in  the  year  1861,  three  learned 
judges  decided  the  opposite,  holding  that  residence  of  that  kind, 
which  had  been  found  in  Tollemache  v.  Tollemache,  to  be  insufficient 
to  give  jurisdiction  to  a  Scottish  court  where  the  domicile  was  Eng- 
lish, was  nevertheless  sufficient  to  give  jurisdiction  to  themselves 
where  the  domicile  was  Australian.  In  "Wilson  v.  Wilson,  L.  R.  2 
P.  &  D.  435,  jurisdiction  was  sustained  by  Lord  Penzance  upon  the 
ground  that  the  petitioner  had  acquired  an  English  domicile,  with  an 
expression  of  opinion  by  his  Lordship  that  such  domicile  ought  to  be 
the  sole  ground  of  jurisdiction  to  dissolve  marriage.  In  Niboyet  v. 
Niboyet,  4  P.  D.  1,  Sir  Robert  Phillimore  expressed  a  similar  opin- 
ion, and  dismissed  the  suit  of  the  petitioner,  who  had  a  matrimonial 
domicile  in  England  which  fully  answered  the  definition  of  such 
domicile  given  either  in  Brodie  v.  Brodie  or  in  Pitt  v.  Pitt,  1  Court 
Sess.  Cas.  3d  Series,  106,  4  Macq.  App.  Cas.  627.  His  decision 
was,  no  doubt,  reversed  in  the  Court  of  Appeal;  but  it  had  the  sup- 
port of  the  present  Master  of  the  Rolls,  and  their  Lordships  have 
already  pointed  out  that  the  judgment  of  the  majority  was  mainly,  if 
not  altogether,  based  upon  a  reason  which  will  not  bear  scrutiny. 

The  Scottish  decisions  appear  to  their  Lordships  to  be  equally 
inefficient  to  show  that  a  matrimonial  domicile  is  a  recognized 
ground  of  divorce  jurisdiction.  So  far  as  they  go,  they  are  con- 
sistent enough  but  the  doctrine  appears  to  have  had  a  very  brief 
existence,  because  the  three  eases  in  which  it  was  applied  all  occurred 
between  the  7th  of  February  and  the  14th  of  December  in  the  year 
1862.  Although,  owing  to  the  course  taken  by  the  appellant's  coun- 
sel in  Pitt  r.  Pitt,  1  Court  Sess.  Cas.  3d  Series,  106,  4  Macq.  App. 
Cas.   627,  the  House  of  Lords  had  not  an  opportunity  of  expressly 

1  This  short  statement  of  farts  is  substituted  for  that  of  the  reporter.  Arguments 
of  counsel  and  part  of  the  oj)iuioii  are  omitted.  —  Ed. 


SECT.    IV.]  LE    MESITRIER    V.    LE    MESURIER.  217 

deciding  the  point,  there  can  be  little  doubt  tliat  the  approval  of  the 
course  adopted  by  counsel,  which  was  openly  expressed  by  Lord 
Westbury,  has  had  the  effect  of  discrediting  the  doctrine  in  Scot- 
land; and  it  is  impossible  to  affirm  that  the  Court  of  Session  would 
now  give  effect  to  it.  The  eminent  judge  who,  in  1862,  was  the  first 
to  give  a  full  and  clear  exposition  of  the  doctrine  of  matrimonial 
domicile,  spoke  of  it,  in  the  year  1882,  not  as  a  doctrine  accepted  in 
the  law  of  Scotland,  but  as  matter  of  speculation. 

It  is  a  circumstance  not  undeserving  of  notice  that  the  learned 
judges,  whether  English  or  Scottish,  who  have  expressed  judicial 
opinions  in  favor  of  a  matrimonial  domicile,  have  abstained  from 
reference  to  those  treatises  on  international  law  which  are  generally 
regarded  as  authoritative,  in  the  absence  of  any  municipal  law  to  the 
contrary.  The  reason  for  their  abstinence  is  probably  to  be  found 
in  the  circumstance  that  nothing  could  be  extracted  from  these 
sources  favorable  to  the  view  which  they  took.  Their  Lordships  are 
of  opinion  that  in  deciding  the  present  case,  on  appeal  from  a  colony 
which  is  governed  by  the  principles  of  the  Roman-Dutch  law,  these 
authorities  ought  not  to  be  overlooked. 

Huber  (Lib.  1,  tit.  3,  s.  2,  De  Confl.  Leg.)  states  the  rule  of  inter- 
national law  in  these  terms:  "Rectores  imperiorum  id  comiter  agunt, 
ut  jui'a  cujusque  populi  intra  terminos  ejus  exercita  teneant  ubique 
suam  vim,  quatenus  nihil  potestati  aut  juri  alterius  imperantis 
ejusque  civium  prtejudicetur."  That  passage  was  cited  with  appro- 
bation by  Lord  Cranworth  and  Lord  Westbury  in  Shaw  v.  Gould, 
L.  R.  3  H.  L.  72,  81.  To  the  same  effect,  but  in  language  more 
pointed,  is  the  text  of  Rodenburg  (De  Stat.  Divers,  tit.  1,  c.  3,  s.  4), 
cited  in  the  same  case  by  Lord  Westbury:  •' Unicum  hoc  ipsa  ret 
natura  ac  necessitas  invexit,  ut  cum  de  statu  et  conditione  hominum 
quseritur,  uni  solummodo  Judici,  et  quidem  Domicilii,  universum  in 
ilia  jus  sit  attributum."  The  same  rule  is  laid  down  by  Bar,  the 
latest  Continental  writer  on  the  theory  and  practice  of  international 
private  law.  He  says  (sect.  173,  Gillespie's  Translation,  p.  382), 
"  that  in  actions  of  divorce  —  unless  there  is  some  express  enactment 
to  the  contrary  —  the  judge  of  the  domicile  or  nationality  is  the 
only  competent  judge."  And  he  adds:  "A  decree  of  divorce,  there- 
fore, pronounced  by  any  other  judge  than  a  judge  of  the  domicile  or 
nationality,  is  to  be  regarded  in  all  other  countries  as  inoperative." 

There  can,  in  their  Lordships'  opinion,  be  no  satisfactory  canon 
of  international  law,  regulating  jurisdiction  in  divorce  cases,  which 
is  not  capable  of  being  enunciated  with  sufficient  precision  to  ensure 
practical  uniformity  in  its  application.  But  any  judicial  definition 
of  matrimonial  domicile  which  has  hitherto  been  attempted  has  been 
singularly  wanting  in  precision,  and  not  in  the  least  calculated  to 
produce  a  uniform  result.  The  definitions  given  in  Brodie  v.  Brodie, 
2  Sw.  &  Tr.  259,  and  in  Pitt  r.  Pitt,  1  Court  Sess.  Cas.  3d  Series. 
106,  4  Macq.  App.  Cas.  627,  appear  to  their  Lordships  to  be  equally 


218  LE   MESUKIER   V.   LE    MESURIER.  [CHAP.  III. 

open  to  that  objection.  ^  Bona  fide  residence  is  an  intelligible  expres- 
sion, if,  as  their  Lordships  conceive,  it  means  residence  which  has 
not  been  resorted  to  for  the  mere  purpose  of  getting  a  divorce  which 
was  not  obtainable  in  the  country  of  domicile,  f  Residence  which  is 
"not  that  of  a  traveller"  is  not  very  definite;  but  nothing  can  be 
more  vague  than  the  description  of  residence  which,  not  being  that 
of  a  traveller,  is  not  to  be  regarded  as  "casual."  So,  also,  the  place 
where  it  is  the  duty  of  the  wife  to  rejoin  her  husband,  if  they  happen 
to  be  living  in  different  countries,  is  very  indefinite.  It  may  be 
her  conjugal  duty  to  return  to  his  society  although  he  is  living  as  a 
traveller,  or  casually,  in  a  country  where  he  has  no  domicile.  Neither 
the  English  nor  the  Scottish  definitions,  which  are  to  be  found  in  the 
decisions  already  referred  to,  give  the  least  indication  of  the  degree 
of  permanence,  if  any,  which  is  required  in  order  to  constitute  matri- 
monial domicile,  or  afford  any  test  by  which  that  degree  of  perma- 
nence is  to  be  ascertained.  The  introduction  of  so  loose  a  rule  into 
the  jus  gentivm  would,  in  all  probability,  lead  to  an  inconvenient 
variety  of  practice,  and  would  occasion  the  very  conflict  which  it  is 
the  object  of  international  jurisprudence  to  prevent. 

Their  Lordships  attach  great  weight  to  the  consideration  that  the 
theory  of  matrimonial  domicile  for  which  the  appellant  contends  has 
never  been  accepted  in  the  court  of  last  resort  for  England  and  Scot- 
land. The  matter  does  not  rest  there;  because  the  theory  is  not 
only  in  direct  opposition  to  the  clear  opinion  expressed  by  Lord 
Westbury  in  Pitt  v.  Pitt,  1  Court  Sess.  Cas.  3d  Series,  106,  4  Macq. 
App.  Cas.  627,  but  appears  to  their  Lordships  to  be  at  variance  with 
the  principles  recognized  by  noble  and  learned  Lords  in  Dolphin  v. 
Robins,  7  H.  L.  C.  390,  and  in  Shaw  v.  Gould,  L.  R.  3  H.  L.  55. 
It  is  true  that  in  these  cases,  and  especially  in  Dolphin  v.  Robins, 
there  was  ground  for  holding  that  the  spouses  had  resorted  to  a  for- 
eign country  and  a  foreign  tribunal  in  order  to  escape  from  the  law 
and  the  courts  of  their  English  domicile.  But  in  both  the  inter- 
national principle  upon  which  jurisdiction  to  dissolve  a  marriage 
depends,  was  considered  and  discussed;  and  the  arguments  addressed 
to  their  Lordships  in  favor  of  matrimonial  domicile  by  the  learned 
counsel  for  the  appellant  appear  to  them  to  be  at  variance  with  the 
weighty  observations  which  were  made  by  noble  and  learned  Lords 
in  these  cases.  In  Dolphin  v.  Robins,  Lord  Cranworth  stated  that 
"it  must  be  taken  now  as  clearly  established  that  the  Scotch  court 
has  no  power  to  dissolve  an  English  marriage,  where,  as  in  this  case, 
the  parties  are  not  really  domiciled  in  Scotland,  but  have  only  gone 
there  for  such  a  time  as,  according  to  the  doctrine  of  the  Scotch 
courts,  gives  them  jurisdiction  in  the  matter."  In  Shaw  r.  Gould 
the  dicta  of  noble  and  learned  lords  upon  the  point  raised  in  this 
appeal  were  even  more  emphatic.  '  Lords  Cranworth  and  Westbury 
expressed  their  entire  approval  of  the  doctrine  laid  down  by  Iluber 
and  Rodenburg   in  those   passages  which  have   already  been  cited 


SECT.  IV. 1  LE    MESURIER   V.    LE    MESUEIER. 


219 


Their  Lordships  did  not  go  the  length  of  saying  that  the  courts  of 
no  other  country  could  divorce  spouses  who  were  domiciled  in  ¥.ng- 
land;  but  they  held  that  the  courts  of  England  were  not  bound,  by 
any  principle  of  international  law,  to  recognize  as  effectual  tjie 
decree  of  a  foreign  court  divorcing  spouses  who,  at  its  date,  had 
M^pjr  domicile  in  England,  The  other  noble  and  learned  lords  who 
took  part  in  the  decision  of  Shaw  v.  Gould,  L.  R.  3  H.  L.  55,  were 
Lords  Chelmsford  and  Colonsay.  Lord  Chelmsford  did  not  express 
any  opinion  upon  the  subject  of  matrimonial  domicile.  Lord  Colon- 
say  rested  his  judgment  upon  the  fact  that  the  spouses  had  resorted 
to  Scotland  for  the  very  purpose  of  committing  a  fraud  upon  the  law 
of  their  English  domicile;  but  he  did  indicate  an  opinion  that,  in 
the  absence  of  such  fraudulent  purpose,  they  might  possibly  have 
obtained  a  divorce  in  Scotland,  after  a  residence  in  that  country 
which  was  insufficient  to  change  their  domicile  of  succession. 

Their  Lordships  have  in  these  circumstances,  and  upon  these  con- 
siderations, come  to  the  conclusion  that,  according  to  international 
law,  thej^mMle_XoX-the  J.ime  being^pf  Ahe jaaarri^  pair  affords  the_ 
only  true  test  of  ^risdrotiqn  to.  dissolve  their  marriage.  They  con- 
cur, without  reservation,  in  the  views  expressed  by  Lord  Penzance 
in  Wilson  v.  Wilson,  L.  R.  2  P.  &  D.  442,  which  were  obviously 
meant  to  refer,  not  to  questions  arising  in  regard  to  the  mutual 
rights  of  married  persons,  but  to  jurisdiction  in  the  matter  of 
divorce:  "It  is  the  strong  inclination  of  my  own  opinion  that  the 
only  lair  and  satisfactory  rule  to  adopt  on  this  matter  of  jurisdiction 
is  to  insist  upon  the  parties  in  all  cases  referring  their  matrimonial 
differences  to  the  courts  of  the  country  in  which  they  are  domiciled. 
Different  communities  have  different  views  and  laws  respecting 
matrimonial  obligations,  and  a  different  estimate  of  the  causes  which 
should  justify  divorce.  Cit  is  both  just  and  reasonable,  therefore, 
that  the  differences  of  married  people  should  be  adjusted  in  accord- 
ance with  the  laws  of  the  community  to  which  they  belong,  and  dealt 
with  by  the  tribunals  which  alone  can  administer  those  laws.  An 
honest  adherence  to  this  principle,  moreover,  will  preclude  the 
scandal  which  arises  when  a  man  and  woman  are  held  to  be  man  and 
wife  in  one  country  and  strangers  in  another."  ^ 

Their  Lordships  will,  therefore,  humbly  advise  Her  Majesty  to 
affirm  the  order  appealed  from.  The  appellant  must  pay  to  the  first 
and  fourth  respondents  their  costs  of  this  appeal.^ 

1  The  doctrine  that  jurisdiction  for  divorce  depends  solely  upon  the  domicile  of  the 
husband  is  now  fully  established  in  England.  Shaw  u.  Att. -Gen.,  L.  R.  2  P.  &  D. 
156  ;  Green  v.  Green,  [1893]  P.  89.  Ace.  Humphrey  v.  Humphrey,  33  Scot.  L.  K, 
99.  —  Ed. 


220  ARMYTAGE   V.   ARMYTAGE.  [CHAP.  IIL 

ARMYTAGE   v.   ARINrYTAGE. 
High  Court  of  Justice,  Probate  Division.     1898. 

[Reported  [1898]  Probate,  178.] 

GoRELL  Barnes,  J.^  This  is  a  suit  for  judicial  separation  by  Mrs. 
Armytage  against  her  husband  on  the  ground  of  his  alleged  cruelty 
towards  her.  By  his  answer  the  respondent  has  denied  the  alleged 
cruelty,  and  by  an  act  on  petition  he  has  further  pleaded  that  the 
court  has  no  jurisdiction  to  entertain  the  suit.  I  have,  therefore,  to 
determine  a  question  of  fact,  whether  there  has  been  cruelty  by  the 
respondent  to  the  petitioner,  and  a  question  of  law,  whether  the  court 
has  jurisdiction  in  the  circumstances  to  entertain  the  suit.  The  second 
question  raises  a  point  of  considerable  importance  in  private  inter- 
national law. 

The  parties  were  married  at  Toorak,  near  Melbourne,  Australia,  on 
April  11,  1SS8,  and  there  are  two  children  of  the  marriage,  whose 
custody  the  petitioner  seeks  to  obtain.  The  respondent  is  by  birth  an 
Australian,  and  his  domicile  is  in  the  colony  of  Victoria.  He  was  edu- 
cated at  Cambridge,  and  has  been  called  to  the  p:nglish  Bar.  The 
petitioner  is  an  P^nglishwoman,  born  in  England,  of  parents  residing 
at  Blackheath,  near  London.  The  respondent  and  the  petitioner  be- 
came acquainted  on  board  ship  on  the  passage  from  this  country  to 
Melbourne,  and  their  marriage  was  celebrated  shortly  afterwards. 
They  cohabited  in  Australia  and  in  England,  and  afterwards  in  Italy, 
and  the  occurrences  which  give  rise  to  this  suit  took  place  at  Florence 
in  April  and  May,  1897.  .   .   . 

The  further  facts  necessary  to  refer  to  are  these :  The  petitioner 
came  to  this  country  with  her  children  on  or  about  Ma^y  25,  1897,  and 
she  and  the  children  have  since  resided  under  her  parents'  roof  and  at 
Bexhill.  The  respondent's  solicitor  on  May  31,  1897,  wrote  on  behalf 
of  the  respondent  to  the  petitioner  and  her  father  requesting  the  peti- 
tioner to  return  with  the  children  to  her  husband,  but  she  declined  to 
comply  with  this  request.  At  the  end  of  June,  1897,  the  respondent 
came  to,  and  has  since  resided  in,  England,  but  I  understand  he  has 
not  taken  up  a  permanent  residence  here,  and  has  only  come  to  and  is 
remaining  in  England  for  the  purpose  of  enforcing,  and  so  long  as  may 
be  necessary  to  determine,  such  riglits  as  he  may  have  against  the 
petitioner  with  regard  to  the  children.  In  the  month  of  November, 
1897,  he  settled  the  sum  of  £100  on  each  of  his  children,  and  made 
them  wards  of  Court  in  Chancery.  He  tliereupon  applied  to  North,  J., 
for  an  order  for  the  custody  of  the  children,  which  was  met  by  a  cross- 
application  on  tlie  part  of  the  petfhioner.  In  tlie  meantime  these  pro- 
ceedings were  commenced,  and  the  respondent  was  served  with  the 
citation  and  petition  in  this  country.  North,  J.,  ordered  the  application 
1  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.  IV.]  ARMYTAGE  V.    ARMYTAGE.  221 

before  him  to  stand  over  until  after  the  determination  of  this  suit.  The 
question  to  be  decided,  therefore,  is  whether  or  not  this  court  can 
entertain  a  suit  for  judicial  separation  by  the  petitioner  against  the 
respondent  in  the  circumstances  above  stated.  .  .  . 

The  court  does  not  now  pronounce  a  decree  of  dissolution  w^^"'*"  t'^^ 
parties  are  not  domiciled  in  this  p.nuntry.  except  in  favor  of  a  wife  de- 
eerted  by  her  husband,  or  whose  husband  has  so  conducted  himself 
towards  her  that  she  is  justified  in  living  apart  from  him,  and  who,  up 
lO  the  time  when  she  was  deserted  or  began  so  to  be,  was  domiciled 


with  her  husband  in  this  country,  in  which  case,  without  necessarily 
resortuig  to  the  American  doctrine  that  in  such  circumstances  a  wife 
ma}'  acquire  a  domicile  of  her  own  in  the  country  of  the  matrimonial 
home,  it  is  considered  that,  in  order  to  meet  the  injustice  which  might 
be  done  by  compelling  a  wife  to  follow  her  husband  from  countr}-  to 
countr}',  he  cannot  be  allowed  to  assert  for  the  purposes  of  the  suit  that 
he  has  ceased  to  be  domiciled  in  this  country.  The  jurisdiction  to 
dissolve  marriages  was  conferred  upon  this  court  by  the  Matrimonial 
Causes  Act,  1857,  and  although  that  act  does  not  expressh*  make 
domicile  a  test  of  jurisdiction,  that  test  is  applied  by  the  court  to  the 
exercise  of  jurisdiction  in  cases  of  dissolution  of  marriage.  It  is  de- 
rived from  the  principles  of  private  international  law,  an  adherence  to 
which  is  necessary,  as  Lord  Penzance  said  in  Wilson  v.  Wilson,  L.  R. 
2  P.  &  M.  435,  at  p.  442,  in  order  to  "preclude  the  scandal  which 
arises  when  a  man  and  woman  are  held  to  be  man  and  wife  in  one 
countr}'  and  strangers  in  another."  These  principles  are  expounded 
by  many  jurists  in  this  and  other  countries.  They  are  based  on  the 
principle  that  a  person's  status  ought  to  depend  on  the  law  of  his  domi- 
cile, though  there  ma\'  be  limitations  and  exceptions  to  this  principle  : 
see  Dicey's  Conflict  of  Laws,  1896,  cap.  18,  p.  474,  et  seq.  (conf 
Savigny,  s.   362,   Guthrie's  translation,  2d  ed.  p.   148). 

The  jurisdiction  in  suits  other  than  suits  for  dissolution  of  marriage 
is  conferred  on  the  court  b}-  the  6th  section  of  the  act  aforesaid.  By 
other  sections  judicial  separation  is  substituted  for  the  old  divorce  a 
mensa  et  thoro^  and  a  new  ground  for  separation,  namely,  desertion 
without  cause  for  two  years  and  upwards,  is  added.  Sect.  22  provides  as 
follows  :  "  In  all  suits  and  proceedings  other  than  proceedings  to  dissolve 
any  marriage,  the  said  court  shall  proceed,  and  act,  and  give  relief  on  prin- 
ciples and  rules  which,  in  the  opinion  of  the  said  court,  shall  be  as  nearly 
as  may  be  conformable  to  the  principles  and  rules  on  which  the  Ecclesiasti- 
cal Courts  have  heretofore  acted  and  given  relief,  but  subject  to  the  pro- 
visions herein  contained,  and  to  the  rules  and  orders  under  this  act." 
There  are  no  special  provisions  of  the  act  or  rules  or  orders  which 
directly  affect  the  present  question.  VThe  present  suit  is  for  judicial 
separation  on  the  ground  of  cruelt}'^  Before  the  act  it  would  have 
been  a  suit  for  divorce  a  mensa  et  thoro  on  the  same  ground,  and  the 
inquiry  is  as  to  the  principles  and  rules  on  which  the  Ecclesiastical 
Courts  would  have  acted  in  the  circumstances.     The  petitioner  main- 


222  AEMYTAGE    V.   ARMYTAGE.  [CHAP.  III. 

tains  that  the  test  of  domicile  is  not  applicable  as  in  a  suit  for  dissolu- 
tion of  marriage,  and  that  the  Ecclesiastical  Courts  would  have  given 
her  relief  where  she  and  her  husband  are  both  residing  in  England  in  the 
circumstances  proved,  whereas  the  respondent  maintains  that  no  relief 
would  have  been  given  because  the  parties  are  not  aomiciieci  in  England, 
and  no  act  of  crueltv  has  been  proved  within  the  jurisdiction.   .  .  . 

Most  of  the  writers  on  private  international  law  and  the  conflict  of 
laws  treat  at  length  the  question  of  the  laws  and  principles  upon  which 
the  dissolubility  or  indissolubility  of  marriage  depends,  but  there  is  little 
to  be  found  in  the  works  of  such  writers  on  the  question  of  jurisdif  tion  in 
decree  the  separation  or  divorce  a  mensa  et  thoro  pf  marriecLpersons  who 
are  residing  but  not  domiciled  in  the  country  of  the  forum.  The  reasons 
are  not  far  to  seek!  Dissolution  of  marriage  has  been  permitted  in 
some  States  and  not  in  others,  and  has  been  allowed  in  some  States  on 
grounds  different  from  those  on  which  it  could  be  obtained  in  others. 
There  has  been  want  of  unanimity  as  to  the  forum  which  ought  to  take 
cognizance  of  the  question  of  divorce,  and  as  to  the  laws  to  be  applied 
and  the  recognition  to  be  accorded  in  one  State  to  a  decree  of  dissolu- 
tion of  marriage  pronounced  in  another.  Persons  domiciled  in  a  coun- 
try where  divorce  has  not  been  pei-mitted,  or  only  permitted  on  certain 
grounds,  have,  in  order  to  obtain  divorces,  temporarily  resided  or 
assumed  domicile  in  another  country  where  divorce  has  been  permitted 
or  more  easily  obtained  than  in  the  former  countr}'.  Hence  numerous 
difficult  and  varied  questions  have  arisen  and  been  discussed  in  re- 
ported cases  and  by  different  jurists  upon  the  question  of  dissolution 
of  marriage.  But  in  practice  suits  for  judicial  separation  or  divorce  a 
mensa  et  thoro  and  restitution  of  conjugal  rights  do  not  appear  to  have 
given  rise  to  similar  difficulties,  and,  therefore,  cases  and  discussions 
as  to  jurisdiction  in  these  suits  are  not  often  .met  with.  Such  suits 
generally  occur  before  the  tribunals  of  the  country  in  which  the  parties 
are  in  fact  domiciled,  and  a  case  like  that  before  me  was  not  so  likely 
to  occur  in  former  days  as  at  the  present  time,  when  large  numbers  of 
people  are  to  be  found  residing  for  more  or  less  lengthy  periods  away 
from  the  place  of  their  domicile.^  .  .  . 

I  conclude  from  the  writers  to  whom  I  have  referred  that  most  of 
them  are  disposed  to  consider  that(the  courts  of  the  country  in  which 
the  parties  are  living,  though  not  domiciled,  ought  to  have  the  right  in 
a  matrimonial  suit  to  afford  protection  to  an  injured  party  from  the 
cruelty  of  the  other  party.  ^ 

Lord  ITannen  may  possibly  have  had  such  a  case  in  his  mind  when, 
in  giving  judgment  in  Firebrace  r.  Fircbracc,  (1878)  4  P.  D.  63,  he 
said,  "  The  domicile  of  the  wife  is  that  of  the  husband,  and  her  remedy 
for  matrimonial  wrongs  must  be.  usually  sought  in  the  place  of  that 

1  ^e  learned  judge  here  cited  and  Examined  4  Phil.  Int.  L.  382  ;  Burfje,  Colon. 
Laws,  663  ;  Bishop,  Mar.  &  Div.  s.  158  ;  Guthrie's  Bar's  Priv.  Internat.  Law,  381  ; 
Westlake,  Priv.  Internat.  Law,  s.  47  ;  Fraser,  Uusb.  &  Wife,  1294  ;  Wharton,  Confl. 
Laws,  s.  210.  —  Ed. 


SECT.  IV.]  ARMYTAGE  V.    ARMYTAGE.  223 

domicile  ;  "  but  added  :  "  It  is  not,  however,  inconsistent  with  this  prin- 
ciple that  a  wife  should  be  allowed  in  some  cases  to  obtain  relief  against 
her  husband  in  the  tribunal  of  the  country  in  which  she  is  resident, 
though  not  domiciled."  4  P.  D.  at  p.  67.  That  was  a  suit  for  resti- 
tution of  conjugal  rights  where  the  respondent,  the  husband,  who  was 
domiciled  in  Australia,  had  left  England  before  the  institution  of  the 
suit,  and  it  was  held  that  the  court  had  not  jurisdiction  over  him  after 
he  left  this  country,  and  that  the  suit  could  not  be  maintained.  Had 
he  remained  in  England  it  would  seem  from  the  cases  of  Newton  v. 
Newton,  (1885)  11  P.  D.  11,  and  Thornton  r.  Thornton,  (1886)  11  P.  D. 
176,  that  the  suit  could  have  been  maintained.  In  the  recent  case  of 
Christian  v.  Christian,  (1897)  78  L.  T.  86,  the  President  said  that  a 
suit  for  judicial  separation  may  be  founded  upon  matrimonial  residence 
only  as  distinguished  by  our  law  from  domicile. 

Having  considered  sufficiently  for  the  purposes  of  the  case  the  opin- 
ions of  the  jurists  above  mentioned,  it  is  necessary  that  I  should  revert 
to  the  22d  section  of  the  Act  of  1857,  which  requires  the  court  in  such 
a  suit  as  the  present  to  act  conformably  to  the  principles  and  rules  on 
which  the  Ecclesiastical  Courts  had  theretofore  acted  and  given  relief. 

There  are  several  works  which  deal  more  particularly  with  the  juris- 
diction and  mode  of  proceeding  in  the  Ecclesiastical  Courts  —  e.  g.> 
Burn's  Ecclesiastical  Law,  ed.  1842,  Rogers's  Ecclesiastical  Law,  ed. 
1849,  Shelford's  Law  of  Marriage  and  Divorce,  ed.  1841,  and  older 
works,  such  as  Godolphin's  Abridgment ;  but  I  cannot  trace  in  them 
any  statement  upon  the  precise  point  in  question,  and  the  principles  to 
govern  it  must  be  deduced  from  the  general  principles  and  practice  of 
the  courts.  These  are  stated  in  general  terras  so  far  as  concerns  the 
matter  under  consideration  by  James,  L.  J.,  in  his  judgment  above  re- 
ferred to,  see  Nibo3'et  v.  Niboyet,  4  P.  D.  1  at  p.  3,  where  the  jurisdiction 
of  the  Court  Christian  is  considered,  and  it  is  pointed  out  that  the  Church 
and  its  jurisdiction  had  nothing  to  do  with  the  original  nationality  or 
acquired  domicile  of  the  parties,  that  residence  as  distinct  from  casual 
presence  on  a  visit  or  in  itinere  was  an  important  element,  but  that 
residence  had  no  connection  with  or  little  analogy  to  the  question  of  a 
person's  domicile. 

In  my  opinion,  if  the  parties  had  a  matrimonial  home,  but  were  not 
domiciled  within  the  jurisdiction  of  an  Ecclesiastical  Court,  that  court 
would  have  interfered,  if  the  parties  were  within  the  jurisdiction  at  the 
commencement  of  the  suit,  to  protect  the  injured  pai-ty  against  the  other 
party  in  respect  of  the  adultery  or  cruelty  of  the  latter,  and  I  can  find 
no  authority  for  the  suggestion  made  by  the  respondent's  counsel  that 
such  interference  would  be  limited  to  cases  where  the  offence  com- 
plained of  was  committed  within  the  jurisdiction.  In  Warrender  v. 
Warrender,  (1835)  2  CI.  &  F.  488,  at  p.  562,  Lord  Lyndhurst  said: 
''The  law,  either  in  this  country  or  in  Scotland,  makes  no  distinction 
in  respect  of  the  place  of  the  commission  of  the  offence."  Although 
the  Ecclesiastical  Courts  could  not  extinguish  the  mutual  obligations  of 


224  ARMYTAGE   V.   ARMYTAGE.  [CHAP.  III. 

husband  and  wife,  they,  acting /»ro  salute  cmimce,  suspended  these  obli- 
gations in  order  to  protect  and  relieve  the  injured  party.  It  could  make 
no  diflference,  where  the  parties  were  residing  within  the  jurisdiction, 
that  the  necessity  for  protection  and  relief  arose  in  consequence  of 
adultery  committed  by  the  wrong-doer  while  temporarily  outside  the 
jurisdiction,  or  of  cruelty  committed  while  the  parties  were  temporarily 
outside  the  jurisdiction,  and  the  apprehension  of  further  acts  of  cruelty 
remained.  If  the  parties  were  within  the  jurisdiction,  and  the  necessi- 
ties of  the  case  demanded  that  one  of  them  should  be  protected  against 
a  matrimonial  wrong  done  by  the  other  of  which  the  courts  would  take 
coo-nizance,  I  cannot  doubt  that  the  courts  would  have  interfered.  The 
case  of  Manning  v.  Manning,  (1871)  L.  R.  2  P.  &  M.  223,  which  was 
relied  upon  by  the  respondent's  counsel,  is  no  authority  against  this 
view,  because  in  that  case  the  respondent  was  not  within  the  jurisdic- 
tion of  the  court,  and  the  petitioner  was  held  not  to  be  a  bona  fide 
resident  in  England.  If  the  respondent's  contention  be  correct  no 
decree  of  judicial  separation  could  be  made,  even  in  cases  like  Niboyet 
V.  Niboyet,  4  P.  D.  1,  where  the  parties,  though  not  domiciled,  were 
resident  for  years  in  this  country. 

/Then,  does  the  present  case  fall  within  the  principles  and  rules  upon 
which  the  courts  have  acted  ?  I  think  it  does.  The  wife,  an  English- 
woman, whose  domicile  of  origin  was  English,  and  who  has  resided  at 
times  in  England  with  her  husband,  is  forced,  by  the  cruelty  committed 
in  Italy  by  her  husband,  a  domiciled  Australian,  to  seek  the  protection 
of  her"  parents  in  England.  Though  legally  domiciled  in  Australia,  as 
a  matter  of  fact  she  has  been  forced  to  separate  herself  from  her  hus- 
band and  establish  herself  in  a  home  of  her  own  in  this  country.  She 
and  her  husband  are  both  within  the  jurisdiction.  She  has  been  re- 
quired to  return  with  her  children  to  her  husband,  and  is  afraid  to  do 
so  owing  to  her  apprehension  of  a  repetition  of  the  acts  of  cruelty  which 
have  been  committed  against  her  while  they  were  living  together  abroad. 
It  is  against  the  repetition  of  apprehended  acts  of  cruelty  that  the  court 
grants  its  protection,  and,  unless  the  court  interferes,  there  is  nothing 
to  prevent  the  husband  from  forcing  himself  upon  his  wife  and  placing 
her  in  a  position  in  which  she  may  be  subjected  to  further  acts  of 
cruelty.  The  status  of  married  persons  within  the  country  is  recog- 
nized. Performance  of  the  duties  arising  from  the  marriage  tie  should 
be  required,  and  protection  afforded  against  an  abuse  of  the  position 
resulting  from  that  tie  where  necessary.  Police  protection  is  an  in- 
adequate remedy-V 

It  may  be  objected  that  a  decree  of  judicial  separation  affects  the 
status  of  the  parties,  and  that  a  change  of  status  ought  on  principle 
only  to  be  effected  by  the  courts  of  the  domicile.  But  the  relief  is  to  be 
o-iven  on  principles  and  rules  which,  in  the  opinion  of  the  court,  shall 
be  as  nearly  as  may  be  conformable  to  the  principles  and  rules  on 
which  the  Ecclesiastical  Courts  gave  relief.  According  to  those  prin- 
ciples and  rules  cruelty  and   adultery  were  grounds   for  a  sentence  of 


SECT.  IV.]  AEMYTAGE    V.   AEMYTAGE.  225 

flivorce  a  mensa  et  thoro  which  did  not  dissolve  the  marriage,  but 
merely  suspended  either  for  a  time  or  without  limitation  of  time  some 
of  the  obligations  of  the  parties.  The  sentence  commonh-  separated 
the  parties  until  they  should  be  reconciled  to  each  other.  The  relation 
of  marriage  still  subsisted,  and  the  wife  remained  a  feme  covert.  A 
woman  divorced  by  the  court  a  mensa  et  thoro  and  living  separate  and 
apart  from  her  husband  could  not  be  sued  as  a  feme  sole  (see  Lewis  v. 
Lee,  1824,  3  B.  &  C.  291).  The  effect  of  the  sentence  was  to  leave 
the  legal  status  of  the  parties  unchanged.  Although  a  sentence  of  judi- 
cial separation  is  to  have  the  effect  of  a  divorce  a  mensa  et  thoro  under 
the  old  law  (s.  16  of  the  Act  of  1857),  and  also  the.  further  effect  of 
placing  the  wife  in  the  position  of  a  feme  sole,  with  respect  to  property 
which  she  may  acquire,  or  which  ma}-  come  to  or  devolve  upon  her, 
from  the  date  of  the  sentence  and  whilst  the  separation  continues,  and 
also  for  the  purposes  of  contract  and  wrongs  and  injuries  and  suing 
and  being  sued  during  that  period  (ss.  25  and  26  of  the  Act  of  1857)  ; 
yet  as  the  relief  to  be  given  now  is  to  be  given  according  to  the  prin- 
ciples and  rules  in  force  in  the  Ecclesiastical  Courts,  I  am  of  opinion 
that  the  effect  of  the  said  ss.  25  and  26,  if  they  affect  a  wife's  status 
within  the  meaning  of  the  term  as  applied  to  the  principles  under  con- 
sideration, which  is  doubtful,  is  not  to  deprive  the  court  of  the  power 
to  grant  relief  in  cases  where  it  would  have  been  granted  by  the  Eccle- 
siastical Courts. 

It  may  be  further  objected  that,  as  domicile  is  considered  a  test  of 
jurisdiction  in  cases  of  dissolution  of  marriage,  in  order  that  the  decree 
may  be  recognized  in  countries  other  than  that  of  the  domicile,  for  the 
same  reason  a  similar  test  should  be  applied  in  cases  of  judicial  separa- 
tion. But  the  reasons  which  apph'  in  the  one  case  are  not  applicable 
to  the  other  ;  and  even  if  the  principle  should  be  established  that  the 
courts  of  the  country'  of  the  domicile  of  the  parties  are  the  onh'  courts 
which  can  pronounce  a  decree  of  judicial  separation  which  ought  to  be 
recognized  in  other  countries,  in  my  opinion,  no  valid  reason  can  be 
urged  against  the  courts  of  a  country,  in  which  a  husband  and  wife  are 
actually  living,  pronouncing  a  decree  which  will  protect  the  one  against 
the  other  so  long  as  the}'  remain  within  the  jurisdiction. 

In  the  present  case  the  wife's  domicile  is  legally  in  Australia,  but,  as 
a  matter  of  fact,  she  has  justifiabh-  separated  herself  from  her  husband 
and  made  her  home  in  England,  and  it  is  in  England  that  she  now  re- 
quires protection.  He  has  come  here  and  subjected  himself  to  the 
jurisdiction  of  the  courts  of  this  country.  Could  anj'thing  be  more 
unreasonable  than  for  this  court  to  hold  that  it  has  no  power  to  suspend 
the  wife's  obligation  to  live  with  her  husband  while  in  this  country,  and 
leave  her  to  proceed  in  the  courts  in  Australia  to  protect  herself  against 
her  husband  in  England?  It  may,  I  think,  be  safely  laid  down  tliat 
#  the  Ecclesiastical  Courts  would  formerly,  and  this  court  will  now,  inter- 
fere to  protect  a  wife  against  the  cruelty  of  her  husband,  both  being 
within  the  jurisdiction,  when  the  necessities  of  the  case  require  such 

15 


226  DITSON    V.   DITSON.  [CHAP.  III. 

intervention.  I  therefore  hold  that  this  court  has  jurisdiction  to  enter- 
tain this  suit,  and  I  pronounce  a  decree  of  judicial  separation  in  favor 
of  the  petitioner  with  costs.  Having  held  that  the  court  has  jurisdic- 
tion to  entertain  the  suit,  I  think  it  follows  that  the  court  has  jurisdiction 
under  the  powers  expressly  conferred  upon  it  by  the  35th  section  of  the 
said  Act  of  1857,  and  the  4th  section  of  the  Matrimonial  Causes  Act, 
1859,  to  make  provision  for  the  custody  of  tlie  children  of  the  marriage  ; 
and,  as  I  have  heard  the  case,  it  is  probably  more  convenient  that  I 
should  dispose  of  this  matter  rather  than  leave  it  for  further  contest  in 
the  chancery  proceedings^!  will  hear  any  application  relating  to  the 
children  in  chambers. 


DITSON   V.    DITSON. 
Supreme  Court  of  Rhode  Island.     1856 

[^Reported  4  Rhode  Island,  87.] 

Ames,  C.  J.^  It  is  a  well-settled  principle  of  genei'al  law  upon  this 
subject,  that  the  tribunals  of  a  country  have  no  jurisdiction  over  a 
cause  of  divorce,  wherever  the  offence  may  have  occurred,  if  neither 
of  the  parties  has  an  actual  ljo)ia  Jide  domicile  within  its  territory; 
and  this  holds,  whether  one  or  both  the  parties  be  temporarily  resid- 
ing within  reach  of  the  process  of  the  court,  or  whether  the  defend- 
ant appears  or  not,  and  submits  to  the  suit.  This  necessarily  results 
from  the  right  of  every  nation  or  State  to  determine  the  status  of  its 
own  domiciled  citizens  or  subjects,  without  interference  by  foreign 
tribunals  in  a  matter  with  which  they  have  no  concern.  Bishop  on 
Marriage  and  Divorce,  §  721,  p.  721,  2d  ed.  and  cases  cited.  We 
entirely  agree  with  the  judgment  given  by  the  Supreme  Court  of 
Massachusetts  on  this  point,  in  the  well-considered  case  of  Hanover 
V.  Turner,  14  Mass.  227,  231,  in  which  both  this  rule,  and  the  reason 
for  it  are  stated  with  that  precision  and  largeness  of  view,  which 
indicate  that  tlie  couit  fully  comprehended  the  question  before  them 
as  a  question  of  general  law;  a  kind  of  praise  which  cannot,  with 
any  justice,  be  bestowed  upon  many  American  cases  upon  this 
important  and  interesting  subject.   .   .   . 

The  question  raised  by  the  case  at  bar,  and  for  the  decision  of 
which  in  the  anirmative  this  court  is  said  by  the  Supreme  Court  of 
Massachusetts  in  Lyon  ik  Lyon,  2  Gray,  367,  to  have  pronounced 
a  decree  in  favor  of  Mrs.  Lyon  void  upon  general  principles  of  law, 
is,  whether  the  bona  fide  domicilation  of  the  petitioning  party  in  this 
State  is  sufficient  to  give  this  court  jurisdiction  to  grant  a  divorce  a  ■^ 
vinculo^  although  the  other  party  to  the  marriage  to  be  dissolved  has 
never  been  subject  to  our  jurisdiction,  never  been  personally  served 

'  I'ai  t  ol  the  opinion  only  ia  given.  —  Ed 


SECT.  I\*.]  DITSON    V.   DITSON.  227 

with  notice  of  the  petition  within  the  State,  or  appeared  and  answered 
to  the  petition,  upon  constructive  notice,  or  upon  being  served  with 
personal  notice  of  it,  out  of  the  State?  In  other  words,  the  question 
is,  wliether,  as  a  matter  of  general  law,  a  valid  decree  of  divorce  a, 
vinculo  can  be  passed  in  favor  of  a  domiciled  citizen  of  the  State, 
upon  mere  constructive  notice  to  the 'foreign  or  non-resident  party 
to  the  marriage,  against  whom,  or  to  dissolve  whose  marital  rights 
over  or  upon  the  petitioner,  the  aid  of  the  court  is  invoked?  .   .  . 

It  is  undoubtedly  true,  as  a  common-law  principle,  applicable  to 
the  judgments  of  its  courts,  that  they  bind  only  parties  to  them,  or 
persons  in  such  relation  to  the  parties  and  to  the  subject  of  the  judg- 
ment, as  to  be  deemed  privies  to  it.  The  rule  of  this  system  of 
jurisprudence,  which  brings  privies  within  the  operation  of  the  notice 
served  upon  the  principals  to  a  judgment  and  binds  them  by  its 
effects,  is  founded  upon  quite  as  clear  a  policy,  and  is  sanctioned  by 
quite  as  complete  justice,  as  that  which  renders  the  judgment  obliga- 
tory upon  those  whom  they  represent.  It  is  founded  upon  the  great 
policy  ut  sit  Jljiis  litum,  and  upon  the  necessity,  to  carry  out  this 
policy,  that  the  future  and  contingent  representatives  of  the  parties 
in  relation  to  the  subject  of  the  judgment  should  be  bound  by  it. 
Again,  there  is  no  system  of  jurisprudence,  which,  founded  as  the 
jurisdiction  of  the  court  is  upon  the  personal  service  of  the  subpoena, 
is  more  special  in  its  requisition  that  all  parties  interested  should 
be  served  in  the  suit,  in  order  to  be  bound  by  the  decree,  than  that 
administered  by  the  English  chancery;  yet  even  in  this  court,  from 
the  same  policy,  and  upon  the  same  necessity,  the  first  tenant  in 
tail,  or  the  first  person  entitled  to  the  inheritance,  if  there  be  no 
tenant  in  tail  living,  or  even  the  tenant  for  life,  as  the  only  repre- 
sentative to  be  found  of  the  whole  inheritance,  by  his  appearance  to 
the  suit  binds  to  the  decree  in  it  all  those  subsequently  and  con- 
tingently interested  in  the  estate;  the  court,  in  administering  this 
rule  of  representation  of  parties,  taking  care  oul}^  that  the  repre- 
sentative be  one  whose  interest  in  the  subject  of  the  suit  is  such  as 
to  insure  his  giving  a  fair  trial  to  the  question  in  contestation,  the 
decision  of  which  is  to  affect  those  who  remotely  or  contingently  take 
after  him.  Again,  there  is  the  large  class  of  proceedings  m  rem^  or 
quasi  in  rem,  known  especially  to  courts  administering  public  or 
general  law,  and  borrowed  from  thence  into  every  system  of  jurispru- 
dence in  which,  the  jurisdiction  being  founded  upon  the  possession 
^f  the  thing,  the  decree  binds  all  interested  in  it,  whether  within  or 
ffithout  the  jurisdiction  of  the  nation  setting  up  the  court,  and 
whether  personally  or  constructively  notified  of  the  institution  or  cur- 
rency of  the  proceeding.  This,  too,  is  founded  upon  a  necessity  or 
high  expediency,  since,  without  it,  a  prize  or  instance  court,  for 
example,  could  not,  so  scattered  or  concealed  are  the  parties  inter- 
ested, perform  any  of  the  functions  for  which,  by  the  general  or 
public  law,  it  is  set  up.     Proceedings  of  this  nature  must,  we  think. 


228  DITSON    V.   DITSON.  [CHA.P,  III. 

be  familiar  to  the  courts  of  Massachusetts;  and  probably  not  a  day 
passes  in  which  things  within  their  jurisdiction  are  not,  by  direct 
attachment  or  garnishee  process,  seized,  attached,  condemned,  and 
sold  under  their  judgments,  without  other  than  constructive  notice 
to  the  non-resident  owners  of  them,  in  order  that  these  courts  may 
do  justice  to  their  own  citizens,  or  even  to  alien  friends,  properly 
applying  to  them  for  relief.  Here,  too,  necessity  requires  the  courts 
to  dispense  with  personal  notice,  in  order  to  give  effect  to  their 
judicial  orders;  since  otherwise,  the  State  might  be  full  of  the  prop- 
erty of  non-residents  and  aliens,  applicable  to  all  purposes  except 
the  commanding  ones  of  justice.  Without  doubt,  in  these  and  other 
like  cases,  the  general  law  in  dispensing  with  personal  notice  from 
necessity,  requires  some  fair  approximation  to  it,  by  representation, 
^substitution,  or  at  least  such  publicity,  as  under  tlie  circumstances,  is 
proper  and  possible,  or  the  proceeding  will  be  regarded  as  a  fraud  upon 
the  rights  of  the  absent  and  unprotected,  —  a  robbery  under  the  forms 
of  lavv,  and  so  a  fraud  upon  law  itself.  It  is,  however,  a  very  narrow 
view  of  the  general  law,  it  is  to  form  a  very  low  estimate  of  the  wisdom 
which  directs  its  administration,  to  suppose,  that  when  it  can  do  justice 
to  those  within  its  jurisdiction  and  entitled  to  its  aid  only  by  dispensing 
with  personal  notice  to  those  out  of  it,  and  substituting  instead  what  is 
possible  for  notice  to  them,  it  is  powerless  to  do  this,  and  so,  powerless 
to  help  its  own  citizens  or  strangers  within  its  gates,  however  strong 
may  be  their  claims  or  their  necessities.  Such  a  sacrifice  of  substance 
to  shadows,  of  the  purposes  to  the  forms  of  justice,  might  mark  tlie 
ordinances  of  a  petty  municipality,  but  could  hardly  be  supposed  to 
characterize  the  system  of  general  law. 

Now,  marriage,  in  tlie  sense  in  which  it  is  dealt  with  by  a  decree  of 
divorce,  is  not  a  contract,  but  one  of  the  domestic  relations.  In  strict- 
ness, though  formed  by  contract,  it  signifies  the  relation  of  husband  and 
wife,  deriving  both  its  rights  and  duties  from  a  source  higher  than  any 
contract  of  which  the  parties  are  capable,  and  as  to  these  uncontrollable 
by  anv  contract  which  they  can  make.  When  formed,  this  relation  is 
no  more  a  contract  than  "fatherhood  "  or  "sonsliip  "  is  a  contract.  It 
is  no  more  a  contract  than  serfdom,  slavery,  or  apprenticeship  are  con- 
tracts, the  latter  of  which  it  resembles  in  this,  that  it  is  formed  by  con- 
tract. To  this  relation  there  are  two  parties,  as  to  the  others,  two  or 
more,  interested  without  doubt  in  the  existence  of  the  relation,  and  so 
interested  in  its  dissolution.  Those  parties  are  placed  by  the  relation 
in  a  certain  relative  state  or  condition,  under  the  law,  as  are  parents 
and  children,  masters  and  servants  ;  and  as  every  nation  and  State  lias 
an  exclusive  sovereignty  and  jurisdiction  within  its  own  territory,  so  it 
has  exclusively  the  right  to  determine  the  domestic  and  social  condition 
of  the  person  domiciled  within  that  territory.  It  may.  except  so  fur  as 
checked  by  constitution  or  treaty,  create  by  law  new  rights  in,  or  im- 
pose new  duties  upon,  the  parties  to  these  relations,  or  lessen  both 
rights  and  duties,  or  abrogate  them,  and  so  the  legal  obligation  of  the 


SECT.  IV.]  DITSON    V.   DITSON.  229 

relation  which  involves  them,  altogether.  This  it  may  do,  with  the 
exception  above  stated,  as  in  some  relations,  by  law,  when  it  wills; 
declaring  that  the  legal  relation,  of  master  and  slave,  for  instance,  shall 
cease  to  exist  within  its  jurisdiction,  or  for  what  causes  or  breaches  of 
duty  in  the  relation,  this,  or  the  legal  relation  of  husband  and  wife,  or 
of  parent  and  child,  may  be  restricted  in  their  rights  and  duties  or  alto- 
o-ether  dissolved  through  the  judicial  intervention  of  its  courts.  The 
right  to  govern  and  control  persons  and  things  within  the  State,  sup- 
poses the  right,  in  a  just  and  proper  manner,  to  fix  or  alter  the  status 
of  the  one,  and  to  regulate  and  control  the  disposition  of  the  other ; 
nor  is  this  sovereign  power  over  persons  and  things  lawfully  domiciled 
and  placed  within  the  jurisdiction  of  the  State  diminished  by  the  fact 
that  there  are  other  parties  interested  through  some  relation,  in  the 
status  of  these  persons,  or  by  some  claim  or  right,  in  those  things,  who 
is  out  of  the  jurisdiction,  and  cannot  be  reached  by  its  process.  No 
one  doubts  this,  as  a  matter  of  general  law,  with  regard  to  the  other  do- 
mestic relations,  and  what  special  reason  is  there  to  doubt  it,  as  to  the 
relation  of  husband  and  wife  ?  The  slave  who  flees  from  Virginia  to 
Canada,  —  no  treaty  obliging  his  restoration  —  or  who  is  brought  by 
his  master  thence  to  a  free  State  of  the  Union  —  no  constitutional  pro- 
vision enforcing  his  return  —  finds  his  status  before  the  law  in  the  new 
jurisdiction  he  has  entered  changed  at  once  ;  and  no  one  dreams  that 
this  result  of  a  new  domicile  and  the  new  laws  of  it,  is  less  legally  certain 
and  proper  as  a  matter  of  general  law,  because  the  master  is  out  of  the 
new  jurisdiction  of  his  slave,  and  is  not,  or  cannot  be  cited  to  appear 
and  attend  to  some  formal  ceremony  of  emancipation.  It  is  true  that 
slavery  is  a  partial  and  peculiar  institution,  not  generally  recognized 
by  the  policy  of  civilized  nations  ;  whereas  marriage,  in  some  form,  is 
coextensive  with  the  race,  and,  as  a  relation,  is  nowhere  so  restrictive 
and  so  binding  in  its  obligations  as  amongst  the  most  truly  civilized 
portions  of  it.  Yet  each  nation  and  state  has  its  peculiar  law  and  pol- 
icy as  to  the  mode  of  forming,  and  the  mode  and  causes  for  judicially 
dissolving  this  last  relation,  according  to  its  right ;  and  all  that  other 
States  or  nations,  under  the  general  law  which  pervades  all  Christen- 
dom can  properly  demand  is,  that  in  the  exercise  of  its  clear  right  in 
this  last  respect  as  to  its  own  citizens  and  subjects,  it  should  pay  all, 
and  no  more  attention,  than  is  practicable  to  the  competing  rights  and 
interests  of  their  citizens  and  subjects.  It  should  give  the  non-residents 
and  foreigners,  parties  to  such  a  relation  of  general  legal  sanctity  as  to 
persons  of  the  like  description  interested  in  property  within  its  territory, 
the  rights  to  which  are  also  everywhere  recognized,  at  least  such  notice 
by  publicity  before  it  proceeds  to  judicial  action,  as  can,  under  such 
circumstances,  be  given  consistently  with  any  judicial  action  at  all  efl3- 
cient  for  the  purposes  of  justice.  To  say  that  the  general  law  inexora- 
bly demands  personal  notice  in  order  to  such  action,  or,  still  worse, 
demands  that  all  parties  interested  in  a  relation  or  in  property  subject 
to  a  jurisdiction  should  be  physically  within  that  jurisdiction,  is  to  lay 


230  DITSON    V.   DITSON.  [CHAP.  III. 

down  a  rule  of  law  incapable  of  execution,  or  to  make  the  execution  of 
laws  dependent  not  upon  the  claims  of  justice,  but  upon  the  chance 
locality,  or,  what  is  worse,  upon  the  will  of  those  most  interested  to 
defeat  it. 

It  is  evident,  upon  examining  the  statutes  of  the  diflferent  States  of 
the  Union,  that  legislation  vesting  jurisdiction  for  divorce  in  their  courts 
has  followed  no  principle  of  general  law  in  this  respect  whatsoever ; 
some  statutes  making  the  jurisdiction,  or  supposing  it  to  depend  upon 
the  place  of  the  contract,  some  upon  the  place  of  the  delictum,  and 
some,  as  in  this  State,  and  as  they  should  do,  upon  the  domicile  of  the 
wronged  and  petitioning  party.  The  courts  of  each  State  exercise,  as 
they  must,  jurisdiction  upon  the  principles  laid  down  for  them  by  stat- 
ute ;  and  have  very  little  occasion,  unless  called  upon  to  review  the 
decree  of  some  neighboring  State,  to  attend  to  or  consider  any  general 
priaiciples  pertaining  to  the  subject.  Engaged  in  this  latter  task,  they 
are  very  apt  to  confound  the  statute  principles  of  jurisdiction,  to  which 
they  are  accustomed,  with  the  principles  of  general  law  relating  to  it; 
notwithstanding  the  latter  so  obviously  grow  out  of  the  right  of  every 
State  to  regulate,  in  some  cases  by  law,  and  in  others  by  proper  judi- 
cial action,  according  to  the  nature  of  the  subject,  the  social  condition 
or  status,  as  it  is  called,  of  all  persons  subject  to  its  jurisdiction.  A 
singular  instance  of  forgetfulness  of  this  principle  of  "  State  sover- 
eignty"  is  afforded  by  the  case  of  Hull  v.  Hull,  2  Strobhart's  Equity 
Appeals,  174  ;  in  which  the  right  of  the  State  of  Connecticut  to  dissolve 
through  its  courts  under  the  law  of  that  State,  a  marriage  there  formed 
between  two  of  its  own  citizens,  upon  the  petition  of  a  wife  whose  hus- 
band had  deserted  her  and  her  children  and  settled  in  South  Carolina, 
constructive  notice  only  having  been  given  to  the  absent  and  abscond- 
ing husband,  was  put  upon  the  ground  that  dissolution  of  the  contract 
of  marriage  upon  such  notice  was  part  of  the  law  of  the  place  of  the 
contract  and  so  part  of  the  contract  itself.  The  courts  of  that  State,  it 
seems,  whilst  forgetting  the  State  rights  of  their  northern  sister,  stren- 
uously insist  upon  the  rights  of  their  own  ;  holding,  according  to  the 
exploded  notion  of  Lolley's  Case,  or  rather  of  McArthy  v.  McArthy, 
that  a  South  Carolina  marriage  cannot  be  dissolved  out  of  the  State  of 
South  Carolina,  although  any  other  may.  In  Irby  ^'.  Wilson,  1  Dev.  & 
Bat.  Eq.  R.  568,  576,  under  similar  circumstances,  except  that  in  this 
case  the  wife  was  the  deserting,  and  the  husband  the  petitioning  party, 
the  Supreme  Court  of  North  Carolina  held  that  a  Tennessee  divorce  was 
void,  upon  the  ground  hinted  at  in  Lyon  v.  Lyon,  sup.,  to  wit,  that 
such  a  proceeding  being  between  parties,  and  the  wife  having  been 
constructively  notified  only,  although  such  notice  was  all  that  was  possi- 
ble, the  courts  of  Tennessee  could  not  alter  by  way  of  redress  the  status  of 
one  of  its  own  citizens  become  l)nrdensome  to  him  by  the  alleged  cause- 
less and  continued  desertion  of  his  wife.  Upon  the  same  principle,  and 
for  the  same  reason,  of  course,  North  Carolina  could  not  relieve  from 
the  relation  its  citizen,  the  wife,  although  her  husband  might  have  com- 


SECT.  IV.]  DITSON   V.   DITSON.  231 

pelled  her  to  flee  from  him  to  the  only  home  open  to  her  in  that  State, 
b}-  the  grossest  violation  of  the  duties  which  their  relation  to  each  other 
imposed ;  and  thus,  both  these  conterminous  sovereignties  would  be 
powerless  for  justice,  over  and  upon  the  call  of  its  respective  domiciled 
inhabitant.  In  Penns^ivania,  the  jurisdiction  is  made  to  depend  upon 
jurisdiction  over  the  offender  at  the  time  of  the  offence  (Dorsej  y.  Dor- 
sey,  7  Watts,  349),  as  if  the  lex  loci  delicti  were  to  govern  ;  in  Louis- 
iana, upon  like  jurisdiction,  unless  the  marriage  were  contracted  within 
the  State,  when,  we  suppose,  the  delictum  would  be  regarded  as  a  breach 
of  contract,  if  such  by  the  law  of  Louisiana  in  which  the  contract  was 
entered  into.  Edward  v.  Green,  9  La.  Ann.  R.  317.  Thus,  we  per- 
ceive, that  by  some  courts  marriage  is  treated  as  a  species  of  continuing 
executory  contract  between  the  parties,  the  obligations  of  which, 
and  the  causes  and  even  modes  of  dissolving  which,  are  fixed  by 
the  law  of  the  place  of  contract.  So  sacredly  local  is  it,  in  the  view 
of  some,  that  it  cannot  be  dissolved  but  by  the  courts  of  the  country 
in  which  it  was  formed.  Others,  perceiving,  that  though  a  contract, 
it  is  one  universally  recognized,  acknowledged  the  right  of  foreign  tri- 
bunals to  act  upon  it,  provided  that  in  doing  so,  the}-  govern  themselves 
not  b}'  the  onlv  law  which  thev,  it  may  be  by  statute,  can  administer, 
but  ascertain  whether  it  has  been  broken,  and  so  ought  to  be  dissolved, 
by  the  law  of  the  place  of  the  contract.  Some  treat  breaches  of  the 
contract  of  every  degree  as  quasi  crimes,  to  be  punished  only  in  the 
place  in  which  they  were  committed,  provided  the  parties  be  then  there 
domiciled  ;  and  others,  again,  qualif}'  this  b}-  an  exception  in  favor  of 
the  tribunals  of  the  place  of  contract ;  since  there  the  delicta  can  be 
treated  as  breaches  of  the  contract,  if  such  be  the  law  of  the  place  of 
contract.  If  marriage  be  a  contract,  or  the  breach  of  it  a  tort,  it  may 
well  be  asked,  why  are  they  not  at  least  personal  in  their  nature,  and 
transitorj'  in  their  legal  character  ?  passing  with  the  wronged  person 
wherever  he  or  she  passes,  for  redress  by  any  tribunal  of  the  civilized 
world,  which  can  obtain  jurisdiction  of  the  person  of  the  covenant 
breaker  or  trespasser  ? 

It  is  evident  that  from  such  confusion  of  decisions  and  reasons,  no 
general  principle  worth  considering  can,  b}'  any  process,  be  eliminated. 
Raising  ourselves  above  this  mist  of  misapplied  learning  and  ingenuit}', 
and  looking  at  the  matter  simply  as  it  is,  it  is  obvious  that  marriage,  as 
a  domestic  relation,  emerged  from  the  contract  which  created  it,  is 
known  and  recognized  as  such  throughout  the  civilized  world  ;  ^hat  it 
gives  rights  and  imposes  duties  and  restrictions  upon  the  parties  to  it, 
affecting  their  social  and  moral  condition,  of  the  measure  of  which 
every  civilized  State,  and  certainly  every  State  in  this  Union,  is  the  sole 
judge  so  far  as  its  own  citizens  or  subjects  are  concerned,  and  should 
be  so  deemed  by  other  civilized,  and  especiall}'  sister,  States  ;  that  a 
State  cannot  be  deprived,  directly  or  indirectly,  of  its  sovereign  power 
to  regulate  the  status  of  its  own  domiciled  subjects  and  citizens,  by  the 
fact  that  the  subjects  and  citizens  of  other  States,  as  related  to  them, 


232  DITSON   V,   DITSON.  [CHAP.  III. 

are  interested  in  that  status,  and  in  such  a  matter  has  a  right,  under 
the  general  law,  judicially  to  deal  with  and  modify  or  dissolve  this  rela- 
tiont  binding  both  parties  to  it  by  the  decree,  by  virtue  of  its  inherent 
power  over  its  own  citizens  and  subjects,  and  to  enable  it  to  answer 
their  obligatory  demands  for  justice ;  and  finally,  that  in  the  exercise 
of  this  judicial  power,  and  in  order  to  the  validity  of  a  decree  of  divorce, 
whether  a  meyisa  et  thoro  or  a  vinculo  matrimonii  (the  general  law  does 
not  deprive  a  State  of  its  proper  jurisdiction  over  the  condition  of 
its  own  citizens,  because  non-residents,  foreigners,  or  domiciled  inhabi- 
tants of  other  States  have  not  or  will  not  become,  and  cannot  be  made 
to  become,  personally  subject  to  the  jurisdiction  of  its  courts  ;  but  upon 
the  most  familiar  principles,  and  as  illustrated  by  the  most  familiar  anal- 
oo-ies  of  general  law,  its  courts  may  and  can  act  conclusively  in  such  a 
matter  upon  the  rights  and  interests  of  such  persons,  giving  to  them 
such  notice,  actual  or  constructive^  as  the  nature  of  the  case  admits  of, 
and  the  practice  of  courts  in  similar  cases  sanctions ;  the  purpose  of 
such  notice  being  to  banish  the  idea  of  secrecy  and  fraud  in  the  proceed- 
ing by  inviting  publicity  to  it,  as  well  as  to  give  to  persons  out  of  the 
jurisdiction  of  the  court  every  chance  possible,  under  the  circumstances, 
of  appearing  to  the  proceeding,  and  defending,  if  they  will,  their  own 
rights  and  interests  involved  in  it. 

These  views  are  supported  by  the  practice  of  the  States  of  Connecti- 
cut and  Tennessee  called  in  question,  as  we  have  seen  by  the  courts  of 
South  and  North  Carolina,  as  probably  by  the  practice  of  many  other 
States,  and  certainly  by  the  long  continued  practice  of  our  own.  They 
are  sanctioned  by  the  well-considered  decision  of  Harding  v.  Alden, 
9  Greenl,  R.  140,  and  by  that  learned  jurisconsult,  the  late  Chancellor 
Kent,  in  his  note  on  that  case,  2  Kent's  Cora.,  110,  n.  b.  4th  ed.  They 
are  otherwise  best  sustained  by  authorit}'.  Tolen  v.  Tolen,  2  Blackf. 
407.  Guerabell  v.  Guembell,  Wright,  286.  Cooper  v.  Cooper,  7  Ohio, 
238.  Mansfield  v.  Mclntyre,  10  ib.  27.  Harrison  v.  Harrison,  19  Ala- 
bama, 499.  Hare  v.  Hare,  10  Texas,  355.  See  also  the  whole  subject 
discussed  in  Bishop  on  Marriage  and  Divorce,  passim.^  and  especially 
in  ch.  34  of  that  valuable  work. 

It  may  be  added,  that  the  distressing  consequences  which  otherwise 
might  arise  from  the  conflict  of  laws  and  decisions  upon  this  interesting 
and  important  subject  has  been  wisely  provided  against  by  a  clause  of 
the  Constitution  of  the  United  States,  and  can  find  a  remedy  under  it 
in  the  Supreme  Court  of  the  United  States,  as  the  court  of  last  resort, 
in  cases  demanding  its  application.  By  art.  4,  sect.  1,  of  the  Consti- 
tution of  the  United  States,  "  Full  faith  and  credit  shall  be  given  in  each 
State  to  the  public  acts,  records,  and  judicial  proceedings  of  every  other 
State."  As  this  has  been  construed  by  the  highest  authority  to  give 
in  every  other  State  the  same  effect  to  a  judgment  or  decree  of  a 
State  court  that  it  has  in  that  in  which  it  is  rendered  or  passed,  no 
serious  injury  can  be  done  to  tlie  proper  subjects  of  our  judicial  admin- 
istration by  the  errors  and  mistakes  of  other  courts  with  regard  to  our 


SECT.  IV. J  DITSON   V.   DITSON.  233 

jurisdiction.  From  the  nature  of  the  topics  constanth'  agitated  before 
it,  no  court  in  the  world  is  better  qualified  to  deal  with  questions  of 
general  law,  and  especially  with  one  involving,  as  that  before  us  does, 
the  rights  of  a  State  of  the  Union  ;  and  under  the  trained  qualifications 
of  the  members  of  the  court,  as  well  as  the  constitutional  power  of  the 
court  itself,  those  properly  subject  to  our  judgments  and  decrees  in  this 
respect,  as  in  all  others,  are  quite  safe,  having  honestly  obtained  them, 
in  acting  by  virtue  of  them. ^  .   .   . 

We  reserved  this  case,  the  first  on  the  circuit  which  presented  the 
question  before  discussed  for  consideration,  it  being  admitted  that  the 
husband  of  the  petitioner  had  never  resided  with  her  in  this  State,  or 
even  as  the  proof  showed,  been  within  its  borders,  and  was  now  abroad 
in  parts  unknown,  and  was  not,  of  course,  personally  served,  because 
under  such  circumstances  he  could  not  be  personally  served  with  the  ordi- 
nary citation  issued  by  us  to  a  resident  defendant  to  such  a  petition. 
Under  the  authorized  rule  of  this  court,  in  regard  to  constructive  notice 
to  an  absent  defendant  to  a  petition  for  divorce,  upon  affidavit  of  the 
facts.\six  weeks'  notice  of  the  pendency  of  this  petition  was  given,  by 
publishing  the  same  for  the  space  of  six  weeks  next  before  the  sitting 
of  the  court  at  this  term  \  and  it  is  evident  that  the  husband  of  this  lady 
knows,  as  from  his  conduct  it  is  apparent  that  he  cares,  nothing  about 
this  proceeding.  Whatever  was  the  former  domicile  of  the  petitioner, 
we  are  satisfied  that  she  is,  and  has,  for  upwards  of  the  last  three  years, 
been  a  domiciled  citizen  of  Rhode  Island,  —  her  only  home,  in  the  house 
of  her  father;  and  that,  as  such  citizen,  and  upon  such  notice,  we  have 
power  and  jurisdiction  over  her  case,  and  to  change  her  condition  from 
that  of  a  married  to  that  of  a  single  woman,  granting  to  her  the  relief, 
which,  under  like  circumstances,  the  law  and  policy  of  Rhode  Island 
accords  to  all  its  citizens.  Let  a  decree  be  entered  divorcing  Mary  Ann 
Ditson  from  George  L.  Ditson,  and  annulling  the  bond  of  matrimony 
now  subsisting  between  them  ;  and  that  the  name  of  the  said  Mary  Ann 
Ditson  be  changed  to,  and  she  be  hereafter  known  and  called  by  the 
name  of  Marv  Ann  Simmons,  according  to  the  prayer  of  her  petition.^ 

1  Here  follows  a  discussion  of  the  question  of  domicile,  for  which  see  s.  c.  supra, 
p.  205.  —  Ed. 

2  Ace.  Cheever  v.  Wilson,  9  Wall.  108  ;  Hanberry  v.  Hanberr}-,  29  Ala.  719  ;  Chap- 
man V.  Chapman,  129  111.  386  ;  Harden  v.  Alden,  9  Me.  140  ;  Shreck  v.  Shreck,  32 
Tex.  578  ;  Hubbell  v.  Hubbell,  3  Wis.  662  ;  Stevens  v.  Fisk  (Can. ),  8  L.  N.  42.  See 
Rhyms  v.  Rhyms,  7  Bush.  316  ;  Harteau  v.  Harteau,  14  Pick.  81 ;  Frary  v.  Frary,  10 
N.  H.  61. 

In  Massachusetts  the  court  at  the  domicile  of  either  spouse  is  competent,  at  the 
election  of  the  libellant.  Sewall  v.  Sewall,  122  Mass.  156;  Watkins  v.  Watkins,  135 
Mass.  83.  In  Pennsylvania  the  court  of  the  libellee's  domicile  alone  is  competent, 
unless  the  libellee  has  changed  his  domicile  since  cause  for  divorce  given.  Colvin  v. 
Reed,  55  Pa.  375;  Reel  v.  Elder,  62  Pa.  308.  In  several  States,  the  court  of  the  libel- 
lant's  domicile  alone  is  competent :  Irby  v.  Wilson,  1  Dev.  &  B.  Eq.  568  ;  White  ». 
White,  18  R.  L  292,  27  Atl.  506  ;  Dutcher  v.  Butcher,  39  Wis.  651.  — Ed. 


234  STATE   V.   AKMINGTON.  [CHAP.  III. 

STATE  V.   ARMINGTON. 

Supreme  Court  of  Minnesota.     1878. 

[Ecported  25  Minnesota,  29.] 

The  defendant  was  tried  in  a  district  court  for  the  crime  of  polygamy^ 
He  offered  in  evidence  a  certified  copy  of  a  decree  of  divorce  between 
liimself  and  iiis  former  wife,  granted  by  a  Probate  Court  in  Utah.  This 
was  excluded  by  the  court  on  the  ground  that  both  parties  were  at  that 
time  resident  in  Minnesota  ;  the  defendant  excepted.  The  defendant 
was  convicted  and  sentenced  to  the  state  prison  for  two  years,  and 
appealed.^ 

Cornell,  J.  The  remaining  question  for  consideration  relates  to  the 
decision  of  the  court  excluding  what  purports  to  be  an  authenticated 
cop3'  of  a  decree  of  divorce  of  the  '"  probate  court  in  and  for  Box 
Elder  county,  in  the  territory  of  Utah,"  entered  in  that  court  at  a  special 
term,  on  December  18,  1876,  in  an  action  between  John  L.  Armington, 
plaintiff,  v.  Martha  F.  Armington,  defendant,  dissolving  the  marriage 
contract  between  them.  Among  the  objections  made  to  this  evidence, 
was  the  one  that,  at  the  time  the  decree  purports  to  have  been  rendered 
both  parties  thereto  were  residents  of  this  State,  and  had  been  for  sev- 
eral 3'ears  prior.  When  this  evidence  was  offered,  it  incontestabl}' 
appeared,  from  the  testimony  already  given,  that  both  the  defendant 
and  his  said  wife,  Mrs.  Martha  F.  Armington,  had  been  resident  citi- 
zens of  this  State,  and  domiciled  therein,  for  over  nine  years  prior  to 
the  date  of  the  decree,  and  that  they  were  both  actually  living  in  this 
State  at  the  time  of  its  entry,  /it  did  not  appear,  nor  was  any  offer 
made  to  show  the  fact,  that  either  had  ever  been  domiciled,  even  tem- 
porarily, within  the  territory  of  Utah;  and  as  to  Mrs.  Armington,  it  is 
quite  clear  that  she  never,  at  any  time  during  the  progress  of  the  proceed- 
ings in  said  court,  was  outside  the  limits  of  this  State,  or  within  the 
territorial  limits  of  Utah.  /As  to  Mr.  Armington,  the  most  that  can  be 
claimed  from  the  evidence  is  that  he  temporarily  left  his  residence  in 
Northfiekl,  in  this  State,  sometime  in  the  summer  of  1876,  and  returned 
in  August  or  Septeml)er  of  that  year.  AVhere  he  was,  during  this 
period,  does  not  affirmativel}'  appear ;  l)ut  it  does  affirmativel}'  appear 
that  he  has  resided  and  practised  medicine  in  Northfield  ever  since 
November  in  that  year.  /Upon  this  evidence,  the  court  was  warranted 
in  assuming  that  neither  of  the  parties  ever  acquired  a  bona  fid edom'\c\\Q 
or  residence  in  Utah,  and  that  both  were,  during  the  conduct  of  these 
divorce  proceedings,  domiciled  residents  of  this  State,  and  subject  to  its 
laws.  \,  Upon  this  state  of  facts,  the  probate  court  of  Utah,  whatever 
may  have  been  the  extent  of  its  jurisdiction  over  the  subject  of  divorce 
under  the  local  laws  of  that  territory  as  respects  its  citizens,  had  no 

1  Tills  short  statement  of  the  facts  necessary  for  the  question  of  jurisdiction  is  sub- 
stituted for  the  statement  of  the  Reporter.     I'art  of  the  o[iinion  only  is  given.  —  Ed. 


SECT.  IV.]  HADDOCK  V.   HADDOCK.  235 

jurisdiction  to  adjudicate  upon  the  marriage  relation  existing  between 
tliese  parties.  To  each  State  belongs  the  exclusive  right  and  power  of 
determining  upon  the  status  of  its  resident  and  domiciled  citizens  and 
subjects,  in  respect  to  the  question  of  marriage  and  divorce,  and  no 
other  State,  nor  its  judicial  tribunals,  can  acquire  au}-  lawful  jurisdic- 
tion to  interfere  in  such  matters  between  any  such  subjects^  when 
neither  of  them  has  become  bona  fide  domiciled  within  its  limits;  and 
any  judgment  rendered  by  any  such  tribunal,  under  such  circumstances, 
is  an  absolute  nullity.  Ditson  v.  Ditson,  4  R.  I.  93;  Cooley  Const. 
Lim.  400,  and  notes;  Kerr  v.  Kerr,  41  N.  Y.  272;  Hoffman  v.  Hoff- 
man, 46  N.  Y.  30  ;  Hanover  v.  Turner,  14  Mass.  227.  It  does  not 
appear  upon  the  face  of  the  judgment  or  decree,  or  in  any  of  its  recitals, 
that  either  of  the  parties  were  ever  residents  of  said  territory  of  Utah, 
or  domiciled  therein.  This  is  a  jurisdictional  matter,  which  should 
appear,  to  entitle  the  judgment  to  any  respect  whatever  ;  for  though  it 
be  conceded  that  the  probate  court  that  rendered  the  judgment  was  in 
the  legal  sense  a  court  of  record,  "  its  jurisdiction,"  if  any,  under  the 
local  laws  of  the  territory,  "over  the  subject  of  divorce,  was  a  special 
authorit}'  not  recognized  b}-  the  common  law,  and  its  proceedings  in 
relation  to  it  stand  upon  the  same  footing  witli  those  of  courts  of 
limited  and  inferior  jurisdiction,"  unaided  b}-  any  legal  presumptions 
in  their  favor.  Com.  v.  Blood,  97  Mass.  538.  The  evidence  was 
properly  excluded.^ 


HADDOCK  V.  HADDOCK. 
Supreme  Court  of  the  United  States.     1906. 

[Reported  201  U.  S.  562.] 

White,  J.  The  plaintiff  in  error  will  be  called  the  husband  and  the 
defendant  in  error  the  wife. 

The  wife,  a  resident  of  the  State  of  New  York,  sued  the  husband  in 
that  State  in  1899,  and  there  obtained  personal  service  upon  him.  The 
complaint  charged  that  the  parties  had  been  married  in  New  York  in 
1868,  where  they  both  resided  and  where  the  wife  continued  to  reside, 
and  it  was  averred  that  the  husband,  immediately  following  tlie  mar- 
riage, abandoned  the  wife,  and  thereafter  failed  to  support  her,  and 
that  he  was  the  owner  of  property.  A  decree  of  separation  from  bed 
and  board  and  for  alimony  was  prayed.  The  answer  admitted  the  mar- 
riage, but  averred  that  its  celebration  was  procured  by  the  fraud  of  the 
wife,  and  that  immediately  after  the  marriage  the  parties  had  separated 
by  mutual  consent.  It  was  also  alleged  that  during  the  long  period  be- 
tween the  celebration  and  the  bringing  of  this  action  the  wife  had  in  no 
manner  asserted  her  rights  and  was  barred  by  her  laches  from  doing  so. 
Besides,  the  answer  alleged  that  the  husband  had,  in  1881,  obtained  in 
a  court  of  the  State  of  Connecticut  a  divorce  which  was  conclusive. 


236  HADDOCK   V.   HADDOCK.  [CHAP.  III. 

At  the  trial  before  a  referee  the  judgment  roll  in  the  suit  for  divorce 
in  Connecticut  was  offered  by  the  husband  and  was  objected  to,  first, 
because  the  Connecticut  court  had  not  obtained  jurisdiction  over  the 
person  of  the  defendant  wife,  as  the  notice  of  the  pendency  of  the  peti- 
tion was  by  publication  and  she  had  not  appeared  in  the  action  ;  and, 
second,  because  the  ground  upon  which  tlie  divorce  was  granted,  viz., 
desertion  by  the  wife,  was  false.  The  referee  sustained  the  objections 
and  an  exception  was  noted.  The  judgment  roll  in  question  was  then 
marked  for  identification  and  forms  a  part  of  the  record  before  us. 

Having  thus  excluded  the  proceedings  in  the  Connecticut  court,  the 
referee  found  that  the  parties  were  married  in  New  York  in  1868,  that 
the  wife  was  a  resident  of  the  State  of  New  York,  that  after  the  mar- 
riage the  parties  never  lived  together,  and  shortly  thereafter  that  the 
husband  without  justifiable  cause  abandoned  the  wife,  and  has  since 
neglected  to  provide  for  lier.  The  legal  conclusion  was  that  the  wife 
was  entitled  to  a  separation  from  bed  and  board  and  alimony  in  the  sum 
of  S780  a  year  from  the  date  of  the  judgment.  The  action  of  the  ref- 
eree was  sustained  by  the  Supreme  Court  of  the  State  of  New  York,  and 
a  judgment  for  separation  and  alimony  was  entered  in  favor  of  the  wife. 
This  judgment  was  affirmed  by  the  Court  of  Appeals.  As  by  the  law 
of  the  State  of  New  York,  after  the  affirmance  by  the  Court  of  Appeals, 
the  record  was  remitted  to  the  Supreme  Court,  this  writ  of  error  to  that 
court  was  prosecuted. 

The  Federal  question  is,  Did  the  court  below  violate  the  Constitution    X 
of  the  United  States  by  refusing  to  give  to  the  decree  of  divorce  ren-  ¥ 
dered  in  the  State  of  Connecticut  the  faith  and  credit  to  which  it  was 
entitled? 

As  the  averments  concerning  the  alleged  fraud  in  contracting  the 
marriage  and  the  subsequent  laches  of  the  wife  are  solely  matters  of 
State  cognizance,  we  may  not  allow  them  to  even  indirectly  influence 
our  judgment  upon  the  Federal  question  to  which  we  are  confined,  and 
we,  therefore,  put  these  subjects  entirely  out  of  view.  Moreover,  as, 
for  the  purpose  of  the  Federal  issue,  we  are  concerned  not  Avith  the 
mere  form  of  proceeding  by  which  the  Federal  riglit,  ii  any,  was  denied, 
but  alone  have  power  to  decide  whether  such  right  was  denied,  we  do 
not  inquire  v/hether  the  New  York  court  should  preferably  have  admit- 
ted the  rec(Md  of  the  Connecticut  divorce  suit,  and,  after  so  admitting 
it,  determine  what  effect  it  would  give  to  it  instead  of  excluding  the 
record  and  thus  refusing  to  give  efl'ect  to  the  judgment.  In  order  to 
decide  whether  the  refusal  of  the  court  to  admit  in  evidence  the  Con- 
necticut decree  denied  to  that  decree  the  efllcacy  to  which  it  was  enti- 
tled under  the  full  faith  and  credit  clause,  we  must  first  examine  the 
judgment  roll  of  the  Connecticut  cause  in  order  to  fix  the  precise  cir- 
cumstances under  which  the  decree  in  that  cause  was  rendered. 

Without  going  into  detail,  it  sufl^ces  to  say  that  on  the  face  of  the 
Connecticut  record  it  appeared  that  the  husband,  alleging  that  he  had 
acquired  a  domicil  in  Connecticut,  sued  the  wife  in  that  State  as  a  per- 


SECT.  IV.]  HADDOCK  V.    HADDOCK.  237 

son  whose  residence  was  unknown,  but  whose  last  known  place  of  resi- 
dence was  in  the  State  of  New  York,  at  a  place  stated,  and  charged 
desertion  by  the  wife  and  fraud  on  her  part  in  procuring  the  marriage  ; 
and,  further,  it  is  shown  that  no  service  was  made  upon  the  wife  except 
by  publication  and  by  mailing  a  copy  of  the  petition  to  her  at  her  last 
known  place  of  residence  in  the  State  of  New  York. 

With  the  object  of  confining  our  attention  to  the  real  question  arising 
from  tills  condition  of  the  Connecticut  record,  we  state  at  the  outset 
certain  legal  propositions  irrevocabh-  concluded  by  previous  decisions 
of  this  court,  and  which  are  required  to  be  borne  in  mind  in  analyzing 
the  ultimate  issue  to  be  decided. 

First.  The  requirement  of  the  Constitution  is  not  that  some,  but  that 
full,  faith  and  credit  shall  be  given  b}'  States  to  the  judicial  decrees  of 
other  States.  That  is  to  sa}-,  wiiere  a  decree  rendered  in  one  State  is 
embraced  b}'  the  full  faith  and  credit  clause  that  constitutional  provision 
commands  that  the  other  States  shall  give  to  the  decree  tlie  force  and 
effect  to  which  it  was  entitled  in  the  State  where  rendered.  Harding  v. 
Harding,  198  U.  S.  317. 

Second.  Where  a  personal  judgment  has  been  rendered  in  the  courts 
of  a  State  against  a  non-resident  merelv  upon  constructive  service  and,  •/ 
therefore,  without  acquiring  jurisdiction  over  the  person  of  the  defend- 
ant, such  judgment  ma}'  not  be  enforced  in  another  State  in  virtue  of 
the  full  faith  and  credit  clause.  Indeed,  a  personal  judgment  so 
rendered  is  by  operation  of  the  due  process  clause  of  the  Fourteenth 
Amendment  void  as  against  the  non-resident,  even  in  the  State  where 
rendered,  and,  therefore,  such  non-resident  in  virtue  of  rights  granted 
b}'  the  Constitution  of  the  United  States  may  successfullj'  resist  even  in 
the  State  where  rendered,  the  enforcement  of  such  a  judgment.  Pen- 
noyer  v.  Neff,  95  U.  S.  714.  The  facts  in  that  case  were  these:  Neff, 
who  was  a  resident  of  a  State  other  than  Oregon,  owned  a  tract  of  land 
in  Oregon.  Mitchell,  a  resident  of  Oregon,  brought  a  suit  in  a  court  of 
that  State  upon  a  money  demand  against  Neff.  The  Oregon  statutes 
required,  in  the  case  of  personal  action  against  a  non-resident,  a  publi- 
cation of  notice,  calling  upon  the  defendant  to  appear  and  defend,  and 
also  required  the  mailing  to  such  defendant  at  his  last  known  place 
of  residence  of  a  copy  of  the  summons  and  complaint.  Upon  affidavit 
of  the  absence  of  Neff,  and  that  he  resided  in  the  State  of  California, 
the  exact  place  being  unknown,  the  publication  required  by  the  statute 
was  ordered  and  made,  and  judgment  b}-  default  was  entered  against 
Neff.  Upon  this  judgment  execution  was  issued  and  real  estate  of  Neff 
was  sold  and  was  ultimately  acquired  by  Pennoyer.  Neff  sued  in  the 
Circuit  Court  of  the  United  States  for  the  District  of  Oregon  to  recover 
the  property,  and  the  question  presented  was  the  validitj-  in  Oregon  of 
the  judgment  there  rendered  against  Neflf.  After  the  most  elaborate 
consideration  it  was  expressly  decided  that  the  judgment  rendered  in 
Oregon  under  the  circumstances  stated  was  void  for  want  of  jurisdic- 
tion and  was  repugnant  to  the  due  process  clause  of  the  Constitution  of 


238  HADDOCK  V.    HADDOCK.  CHAP.  HI. 

the  United  States.  The  ruling  was  based  on  the  proposition  that  a 
court  of  one  State  could  not  acquire  jurisdiction  to  render  a  personal 
judgment  against  a  non-resident  who  did  not  appear  by  the  mere  publi- 
cation of  a  summons,  and  that  the  want  of  power  to  acquire  such  juris- 
diction b}'  publication  could  not  be  aided  by  the  fact  that  under  the 
statutes  of  the  State  in  which  the  suit  against  the  non-resident  was 
brought  the  sending  of  a  copy  of  the  summons  and  complaint  to  the 
post  office  address  in  another  State  of  the  defendant  was  required  and 
complied  with.     The  court  said  (p.  727)  : 

''Process  from  the  tribunals  of  one  State  cannot  run  into  another 
State,  and  summon  parties  there  domiciled  to  leave  its  territorj'  and 
respond  to  proceedings  against  them.  Publication  of  process  or  notice 
within  the  State  where  the  tribunal  sits  cannot  create  any  greater  obli- 
gation upon  the  non-resident  to  appear.  Process  sent  to  him  out  of  the 
State,  and  process  published  within  it,  are  equally  unavailing  in  pro- 
ceedings to  establish  his  personal  liability." 

And  the  doctrine  thus  stated  but  expressed  a  general  principle  ex- 
pounded in  previous  decisions.  Bischoff  /■.  Wetliered,  9  Wall.  812.  In 
that  case,  speaking  of  a  money  judgment  recovered  in  tlie  Common 
Pleas  of  Westminster  Hall,  England,  upon  personal  notice  served  in  the 
city  of  Baltimore,  Mr.  Justice  Bradley,  speaking  for  the  court,  said 
(p.  814)  : 

"It  is  enough  to  say  [of  this  proceeding]  that  it  was  wholl}'  without 
jurisdiction  of  tlie  person,  and  whatever  validity  it  may  have  in  England, 
by  virtue  of  statute  law  against  property'  of  the  defendant  there  situate, 
it  can  have  no  validity  here,  even  of  a  prima  facie  character.  It  is 
simply  null." 

Third.  The  principles,  however,  stated  in  the  previous  proposition 
are  controlling  onl}'  as  to  judgments  in  persouani  and  do  not  relate  to 
proceedings  in  rem.  That  is  to  say,  in  consequence  of  the  authority 
which  government  possesses  over  things  within  its  borders  there  is  juris- 
diction in  a  court  of  a  State  by  a  proceeding  in.  rem,  after  the  giving  of 
reasonable  opportunit}'  to  the  owner  to  defend,  to  affect  things  within 
the  jurisdiction  of  the  court,  even  although  jurisdiction  is  not  direct!}' 
acquired  over  the  person  of  the  owner  of  the  thing.  Pennoyer  t'.  Neff, 
sujjra.  ' 

Fourth.  The  general  rule  stated  in  the  second  proposition  is,  more-i/ 
over,  limited  by  the  inlierent  power  which  all  governments  must  possess' 
over  the  marriage  relation,  its  formation  and  dissolution,  as  regards 
their  own  citizens.  From  this  exception  it  results  that  where  a  court 
of  one  State,  conformably  to  the  laws  of  such  State,  or  the  State  through 
its  legislative  department,  has  acted  concerning  the  dissolution  of  tlie 
marriage  tie,  as  to  a  citizen  of  that  State,  such  action  is  binding  in  that 
State  as  to  such  citizen,  and  the  validity  of  the  judgment  may  not 
therein  be  questioned  on  the  ground  that  the  action  of  the  State  in 
dealing  with  its  ovvn  citizen  concerning  the  marriage  relation  was  re- 
pugnant to  the  due  process  clause  of  the  Constitution.     Maynard  v. 


SECT.  IV.]  HADDOCK   V.    HADDOCK.  239 

Hill,  125  U.  S.  190.  In  that  case  the  facts  were  these:  Maynard  was 
married  in  Vermont,  and  the  husband  and  wife  removed  to  Ohio,  from 
whence  Maj-nard  left  his  wife  and  family  and  went  to  California.  Sub- 
sequently he  acquired  a  domicil  in  the  Territory  of  Washington.  Being 
there  so  domiciled,  an  act  of  the  legislature  of  the  Territory  was  passed 
granting  a  divorce  to  the  husband.  Maynard  continued  to  reside  in 
Washington,  and  there  remarried  and  died.  The  children  of  the  former 
wife,  claiming  in  right  of  their  mother,  sued  in  a  court  of  the  Territory 
of  Washington  to  i-ecover  real  estate  situated  in  the  Territory,  and  one 
of  the  issues  for  decision  was  the  validity  of  the  legislative  divorce 
granted  to  the  father.  The  statute  was  assailed  as  invalid,  on  the 
ground  that  Mrs.  Maynard  had  no  notice  and  that  she  was  not  a  resi- 
dent of  the  Territory  when  the  act  was  passed.  From  a  decree  of  the 
Supreme  Court  of  the  Territory  adverse  to  their  claim  the  children 
brought  the  case  to  this  court.  The  power  of  the  territorial  legislature, 
in  the  absence  of  restrictions  in  the  organic  act,  to  grant  a  divorce  to  a 
citizen  of  the  Territory-  was,  however,  upheld,  in  view  of  the  nature  and 
extent  of  the  authorit}'  which  government  possessed  over  the  marriage 
relation.  ,  It  was  therefore  decided  that  the  courts  of  the  Territory  com- 
mitted no  error  in  giving  effect  within  the  Territor}-  to  the  divorce  in 
question.  And  as  a  corollary  of  the  recognized  power  of  a  govern- 
ment thus  to  deal  with  its  own  citizen  by  a  decree  which  would  be 
operative  within  its  own  borders,  irrespective  of  anj'  extraterritorial 
efficacy,  it  follows  that  the  right  of  another  sovereignt}'  exists,  under 
principles  of  comity,  to  give  to  a  decree  so  rendered  such  efficacy  as  to 
that  government  may  seem  to  be  justified  by  its  conceptions  of  duty  and 
public  polic}'. 

Fifth.  It  is  no  longer  open  to  question  that  where  husband  and  wife 
are  domiciled  in  a  State  there  exists  jurisdiction  in  such  State,  for  good 
cause,  to  enter  a  decree  of  divorce  which  will  be  entitled  to  enforcement 
in  another  State  by  virtue  of  the  full  faith  and  credit  clause.  It  has, 
moreover,  been  decided  that  where  a  bona  fide  domicil  has  been  acquired 
in  a  State  by  either  of  the  parties  to  a  marriage,  and  a  suit  is  brought 
by  the  domiciled  party  in  such  State  for  a  divorce,  the  courts  of  tliat 
State,  if  they  acquire  personal  jurisdiction  also  of  the  other  part}',  have 
authority  to  enter  a  decree  of  divorce,  entitled  to  be  enforced  in  every 
State  by  the  full  faith  and  credit  clause.  Cheever  v.  Wilson  9  Wall. 
108. 

Sixth.  Where  the  domicil  of  matrimony  was  in  a  particulai  State,  and 
the  husband  abandons  his  wife  and  goes  into  another  State  in  order  to 
avoid  his  marital  obligations,  such  other  State  to  which  the  husband  has 
wrongfuU}'  fled  does  not,  in  the  nature  of  things,  become  a  new  domicil 
of  matrimon}',  and,  therefore,  is  not  to  be  treated  as  the  actual  or  con- 
structive domicil  of  the  wife  ;  hence,  the  place  where  the  wife  was  domi- 
ciled when  so  abandoned  constitutes  her  legal  domicil  until  a  new  actual 
domicil  be  by  her  elsewhere  acquired.  This  was  clearly  expressed  ill 
Barber  v.  Barber,  21  How.  582,  where  it  was  said  (p.  595)  : 


240  HADDOCK   V.    HADDOCK.  [CHAP.  III. 

"The  general  rule  is,  that  a  voluntary  separation  will  not  give  to  the 
wife  a  different  domiciliation  in  law  from  that  of  her  husband.  But  if 
the  husband,  as  is  the  fact  in  this  case,  abandons  their  domicil  and  his 
wife,  to  get  rid  of  all  those  conjugal  obligations  which  the  marriage  re- 
lation imposes  upon  him,  neither  giving  to  her  the  necessaries  nor  the 
comforts  suitable  to  their  condition  and  his  fortune,  and  relinquishes 
altogether  his  marital  control  and  protection,  he  j-ields  up  that  power 
and  authority  over  her  which  alone  makes  his  domicil  hers.   ..." 

And  the  same  doctrine  was  expressl}-  upheld  in  Cheever  v.  Wilson, 
supra,  where  the  court  said  (9  Wall.  123)  : 

"  It  is  insisted  that  Cheever  never  resided  in  Indiana ;  that  the  dom- 
icil of  the  husband  is  the  wife's,  and  that  she  cannot  have  a  different 
one  from  his.  The  converse  of  the  latter  proposition  is  so  well  settled 
that  it  would  be  idle  to  discuss  it.  The  rule  is  that  she  nia\'  acquire  a 
separate  domicil  whenever  it  is  necessary  or  proper  that  she  should  do 
so.  The  riglit  springs  from  the  necessity  of  its  exercise,  and  endures 
as  long  as  the  necessity  continues." 

Seventh.  So  also  it  is  settled  that  where  the  domicil  of  a  husband  is 
in  a  particular  State,  and  that  State  is  also  the  domicil  of  matrimony, 
the  courts  of  such  State  having  jurisdiction  over  the  husband  may,  in 
virtue  of  the  duty  of  the  wife  to  be  at  the  matrimonial  domicil,  disregard 
an  unjustifiable  absence  therefrom,  and  treat  the  wife  as  having  her 
domicil  in  the  State  of  the  matrimonial  domicil  for  the  purpose  of  the 
dissolution  of  the  marriage,  and  as  a  result  have  power  to  render  a 
judgment  dissolving  the  marriage  which  will  be  binding  upon  both  par- 
ties, and  will  be  entitled  to  recognition  in  all  other  States  by  virtue  of 
the  full  faith  and  credit  clause.     Athei'ton  v.  Atherton,  181  U.  S.  155 

Coming  to  apply  these  settled  propositions  to  the  case  before  us  three 
things  are  beyond  dispute  :  a.  In  view  of  the  authority  which  govern- 
ment possesses  over  the  marriage  relation,  no  question  can  arise  on  this 
record  concerning  the  right  of  the  State  of  Connecticut  within  its  borders 
to  give  effect  to  the  decree  of  divorce  rendered  in  favor  of  the  husband 
by  the  courts  of  Connecticut,  he  being  at  the  time  when  the  decree  was 
rendered  domiciled  in  that  State,  b.  As  New  York  was  the  domicil  of 
the  wife  and  the  domicil  of  matrimony,  from  which  the  husband  fled  in 
disregard  of  his  duty,  it  clearly  results  from  the  sixth  proposition  that 
the  domicil  of  the  wife  continued  in  New  York.  c.  As  then  there  can  be 
no  question  that  the  wife  was  not  constructively  present  in  Connecticut 
by  virtue  of  a  matrimonial  domicil  in  that  State,  and  was  not  there  indi- 
vidually domiciled  and  did  not  appear  in  the  divorce  cause,  and  was  only 
constructively  served  with  notice  of  the  pendency  of  that  action,  it  is 
apparent  that  the  Connecticut  court  did  not  acquire  jurisdiction  over 
the  wife  within  the  fifth  and  seventh  propositions;  that  is,  did  not  ac- 
quire such  jurisdiction  by  virtue  of  the  domicil  of  the  wife  within  the 
State  or  as  the  result  of  personal  service  upon  her  within  its  borders. 

These  subjects  being  thus  eliminated,  the  case  reduces  itself  to  this : 
Wli(>thor  the  Coiniecticut  court,  in  virtue  alone  of  the  domicil  of  the  bus- 


/ 


SECT.  IV.]  HADDOCK  V.   HADDOCK.  241 

band  in  that  State,  had  jurisdiction  to  render  a  decree  against  the  wife 
under  the  circumstances  stated,  which  was  entitled  to  be  enforced  in 
other  States  in  and  by  virtue  of  the  full  faith  and  credit  clause  of  the 
Constitution.  In  other  words,  the  final  question  is  whether  to  enforce 
in  another  jurisdiction  the  Connecticut  decree  would  not  be  to  enforce  in 
one  State,  a  personal  judgment  rendered  in  another  State  against  a  de- 
fendant over  whom  the  court  of  the  State  rendering  the  judgment  had 
not  acquired  jurisdiction.  Otherwise  stated,  the  question  is  this :  Is  a 
proceeding  for  divorce  of  such  an  exceptional  character  as  not  to  come 
within  the  rule  limiting  the  authority  of  a  State  to  persons  within  its 
jurisdiction,  but  on  the  contrary,  because  of  the  power  which  govern- 
ment may  exercise  over  the  marriage  relation,  constitutes  an  exception 
to  that  rule,  and  is  therefore  embraced,  either  within  the  letter  or  spirit 
of  the  doctrines  stated  in  the  third  and  fourth  propositions? 

Before  reviewing  the  authorities  relied  on  to  establish  that  a  divorce 
proceeding  is  of  the  exceptional  nature  indicated,  we  propose  first  to 
consider  the  reasons  advanced  to  sustain  the  contention.  In  doing  so, 
however,  it  must  always  be  borne  in  mind  that  it  is  elementary  that 

where  the  full  faith  and  credit  clause  of  the  Constitution  is  invoked  to 
^111  —  I  — — — — — ■ — — — -.— . —  ' 

compel  the  enforcement  in  one  State  of  a  decree  rendered  in  anothei:^. 
tjie  question  of  the  jurisdiction  of  tlie  court  by  which  the  decree  was 
rendered  is  open  to  inquiry.  And  if  there  was  no  jurisdiction,  either  of 
the  subject  matter  or  of  the  person  of  the  defendant,  the  courts  of  an- 
other State  are  not  required,  by  virtue  of  the  full  faith  and  credit  clause 
of  the  Constitution,  to  enforce  such  decree.  National  Exchange  Bank 
V.  Wilej",  195  U.  S.  257,  269,  and  cases  cited. 

I.  The  wide  scope  of  the  authority  which  government  possesses  over 
the  contract  of  marriage  and  its  dissolution  is  the  basis  upon  which  it  is 
argued  that  the  domicil  within  one  State  of  one  part}'  to  the  marriage 
gives  to  such  a  State  jurisdiction  to  decree  a  dissolution  of  the  marriage 
tie  which  will  be  obligatoiy  in  all  the  other  States  by  force  of  the  full 
faith  and  credit  clause  of  the  Constitution.  But  the  deduction  is  de- 
structive of  the  premise  upon  which  it  rests.  This  becomes  clear  when 
it  is  perceived  that  if  one  government,  because  of  its  authority  over  its 
own  citizens  has  the  right  to  dissolve  the  marriage  tie  as  to  the  citizen 
of  another  jurisdiction,  it  must  follow  that  no  government  possesses  as 
to  its  own  citizens,  power  over  the  marriage  relation  and  its  dissolution. 
For  if  it  be  that  one  government  in  virtue  of  its  authorit}'  over  marriage 
ma}"  dissolve  the  tie  as  to  citizens  of  another  government,  other  govern- 
ments would  have  a  similar  power,  and  hence  the  right  of  every  gov- 
ern joent  as  to  its  own  citizens  might  be  rendered  nugatory  by  the 
exercise  of  the  power  which  every  other  government  possessed.  To 
concretely  illustrate :  If  the  fact  be  that  where  persons  are  married  in 
the  State  of  New  York  either  of  the  parties  to  the  marriage  may,  in 
violation  of  the  marital  obligations,  desert  the  other  and  go  into  the 
State  of  Connecticut,  there  acquiring  a  domicil,  and  procure  a  dissolu- 
tion of  the  marriage  which  would  be  binding  in  the  State  of  New  York 

16 


242  HADDOCK   V.   HADDOCX.  [CHAP.    III. 

as  to  the  part}'  to  the  marriage  there  domiciled,  it  would  follow  that  the 
power  of  the  State  of  New  York  as  to  the  dissolution  of  the  marriage  as 
to  its  domiciled  citizen  would  be  of  no  practical  avail.     And  conversely 
the  like  result  would  follow  if  the  marriage  had  been  celebrated  in  Con- 
necticut and  desertion  had  been  from   that  State  to  New  York,   and 
consequently  the  decree  of  divorce  had  been  rendered  in  New  York. 
Even  a  superficial  analysis  will  make  this  clear.     Under  the  rule  con- 
tended for  it  would  follow  that  the  States  whose  laws  were  the  most  lax 
as  to  length  of  residence  required  for  domicil,  as  to  causes  for  divorce 
and  to  speed  of  procedure  concerning  divorce,  would  in  effect  dominate 
all  the  other  States.     In  other  words,  any  person  who  was  married  in 
one  State  and  who  wished  to  violate  the  marital  obligations  would  be 
able,  by  following  the  lines  of  least  resistance,  to  go  into  the  State 
whose  laws  were  the  most  lax,  and  there  avail  of  them  for  the  purpose 
of  the  severance  of  the  marriage  tie  and  the  destruction  of  the  rights  of 
the  other  party  to  the  marriage  contract,  to  the  overthrow  of  the  laws 
and  public  policy  of  the  other  States.     Thus  the  argument  comes  neces- 
sarily to  this,  that  to  preserve  the  lawful  authorjty_of.till^the-States  over 
marriage  it  is  e^senflaTto'decide  that  all  the  States  have  such  authority 
ontrat  the  sufferance  of  the  other  States.     And  the  considerations  just 
stated  serve  to  dispose  of  the  argument  that  the  contention  relied  on 
finds  support  in  the  ruling  made  in  Maynard  v.  Hill,  referred  to  in  the 
fourth  proposition,  which  was  at  the  outset  stated.     For  in  that  case 
the  sole  question  was  the  effect  within  the  Territory  of  Washington  of  a 
legislative  divorce  granted  in  the  Territory  to  a  citizen  thereof.     The 
ui)holding  of  the  divorce  within  the  Territory  was,  therefore,  but  a  rec- 
ognition of  the  power  of  the  territorial  government,   in  virtue  of  its 
authority  over  marriage,  to  deal   with  a  person  domiciled   within   its 
jurisdiction.     The  case,  therefore,  did  not  concern  the  extraterritorial 
efficacy  of  the  legislative  divorce.     In  other  words,  whilst  the  ruling 
recognized  the  ample  powers  which  government  possesses  over  mar- 
riage as  to  one  within  its  jurisdiction,  it  did  not  purport  to  hold  that 
such  ample  powers  might  be  exercised  and  enforced  by  virtue  of  the 
Constitution  of  the  United  States  in  another  jurisdiction  as  to  citizens 
of  other  States  to  whom  the  jurisdiction  of  the  Territory  did    not 
extend. 

The  anomalous  result  which  it  is  therefore  apparent  would  arise  from 
maintaining  the  proposition  contended  for  is  made  more  inanifest  by 
considering  the  instrument  from  which  such  result  would  be  produced, 
tliat  is,  llie  full  faith  and  credit  clause  of  the  Constitution.  No  one 
denies  tliat  tlie  States,  at  the  time  of  the  adoption  of  the  Constitution, 
possessed  full  power  over  the  subject  of  marriage  and  divorce.  No 
one,  moreover,  can  deny  that,  prior  to  the  adoption  of  the  Constitution, 
the  extent  to  which  the  States  would  recognize  a  divorce  obtained  in  a 
foreign  jin-isdiction  depended  upon  their  conceptions  of  duty  and  comity. 
Besides,  it  must  be  conceded  that  the  Constitution  delegated  no  author- 
ity to  the  Government  of  the  United  States  on  the  subject  of  marriage 


SECT.  IV.]  HADDOCK   V.   HADDOCK.  243 

aud  divorce.  Yet,  if  tlie  proposition  be  maintained,  it  would  follow 
that  tiie  destruction  of  tlie  power  of  tlie  States  over  the  dissolution  of 
marriage,  as  to  their  own  citizens,  would  be  brought  about  by  the  oper- 
ation of  the  full  faith  and  credit  clause  of  the  Constitution.  That  is  to 
sa}-,  it  would  come  to  pass  that,  although  the  Constitution  of  the  United 
States  does  not  interfere  with  the  authority  of  the  States  over  marriage, 
nevertheless  the  full  faith  aud  credit  clause  of  that  instrument  destroyed 
the  authority  of  the  States  over  the  marriage  relation.  And  as  the 
Government  of  the  United  States  has  no  delegated  authorit}'  on  the 
subject,  that  Government  would  be  powerless  to  prevent  the  evil  thus 
brought  about  b}'  the  full  faith  and  credit  clause.  Thus  neither  the 
States  nor  the  National  Government  would  be  able  to  exert  that  au- 
thority over  the  marriage  tie  possessed  by  every  other  civilized  gov- 
ernment. Yet,  more  remarlvable  would  be  such  result  when  it  is  borne 
in  mind  that,  when  the  Constitution  was  adopted,  nowhere,  eitlier  in 
the  mother  country  or  on  the  continent  of  Europe,  either  in  adjudged 
cases  or  in  the  treatises  of  authoritative  writers,  had  the  theory  ever 
been  upheld  or  been  taught  or  even  suggested  that  one  government, 
solely  because  of  the  domicil  within  its  borders  of  one  of  the  parties  to 
a  marriage,  had  authorit}-,  without  the  actual  or  constructive  presence 
of  the  other,  to  exert  its  authority  b}-  a  dissolution  of  the  marriage  tie, 
which  exertion  of  power  it  would  be  the  duty  of  other  States  to  respect 
as  to  those  subject  to  their  jurisdiction. 

II.  It  is  urged  that  the  suit  for  divorce  was  a  proceeding  in  rem,  and, 
therefore,  the  Connecticut  court  had  complete  jurisdiction  to  enter  a 
decree  as  to  the  res,  entitled  to  be  enforced  in  the  State  of  New  York. 
But  here  again  the  argument  is  contradictory.  It  rests  upon  the  theory 
that  jurisdiction  in  Connecticut  depended  upon  the  domicil  of  the  person 
there  suing  and  yet  attributes  to  the  decree  resting  upon  the  domicil  of 
one  of  the  parties  alone  a  force  and  effect  based  upon  the  theory  that  a 
thing  within  the  jurisdiction  of  Connecticut  was  the  subject  matter  of 
the  controvers}-.  But  putting  this  contradiction  aside,  what,  may  we 
ask,  was  the  res  in  Connecticut?  Certainly  it  cannot  in  reason  be  said 
that  it  was  the  cause  of  action  or  the  mere  presence  of  the  person  of  the 
plaintiff  within  the  jurisdiction.  The  only  possible  theorj'  then  upon 
which  the  proposition  proceeds  must  be  that  the  res  in  Connecticut, 
from  which  the  jurisdiction  is  assumed  to  have  arisen,  was  the  marriage 
relation.  But  as  the  marriage  was  celebrated  in  New  York  between 
citizens  of  that  State,  it  must  be  admitted,  under  the  hypothesis  stated, 
that  before  the  husband  deserted  the  wife  in  New  York,  the  res  was  in 
New  York  and  not  in  Connecticut.  As  the  husband,  after  wrongfully 
abandoning  the  wife  in  New  York,  never  established  a  matrimonial 
domicil  in  Connecticut,  it  cannot  be  said  that  he  took  with  him  the 
marital  relation  fi'om  which  he  fled  to  Connecticut.  Conceding,  how- 
ever, that  he  took  with  him  to  Connecticut  so  much  of  the  marital  rela- 
tion as  concerned  his  individual  status,  it  cannot  in  reason  be  said  that 
he  did  not  leave  in  New  York  so  much  of  the  relation  as  pertained  to 


2^:-^:  HADDOCK   V.   HADDOCK.  [CHAP.  III. 

the  status  of  the  wife.  From  any  point  of  view,  then,  under  the  propo- 
sition referred  to,  if  the  roarriage  relation  be  treated  as  the  res,  it  follows 
that  it  was  divisible,  and  therefore  there  was  a  res  in  the  State  of  New 
York  and  one  in  the  State  of  Connecticut.  Thus  considered,  it  is  clear 
that  the  power  of  one  State  did  not  extend  to  affecting  the  thing  situated 
in  another  State.  As  illustrating  this  conception,  we  notice  the  case 
of  Mississippi  &  Missouri  R.  R.  Co.  v.  Ward,  2  Black,  485.  The  facts 
in  that  case  were  these  :  A  bill  was  filed  in  a  District  Court  of  the 
United  States  for  the  District  of  Iowa  to  abate  a  nuisance  alleged  to 
have  been  occasioned  by  a  bridge  across  the  Mississippi  River  dividing 
the  States  of  Illinois  and  Iowa.  Under  the  assumption  that  the  nuisance 
was  occasioned  by  the  operation  of  the  bridge  on  the  Illinois  side,  the 
court,  after  pointing  out  that  the  United  States  Circuit  Court  for  the  Dis- 
trict of  Iowa  exercised  the  same  jurisdiction  that  a  State  court  of  Iowa 
could  exercise  and  no  more,  said  (p.  494  )  : 

"  The  District  Court  had  no  power  over  the  local  object  inflicting  the 
injury  ;  nor  any  jurisdiction  to  inquire  of  the  facts,  whether  damage  had 
been  sustained,  or  how  much.  These  facts  are  beyond  the  court's  juris- 
diction and  powers  of  inquiry,  and  outside  of  the  case." 

Nor  has  the  conclusive  force  of  the  view  which  we  have  stated  been 
met  by  the  suggestion  that  the  res  was  indivisible,  and  therefore  was 
wholly  in  Connecticut  and  wholly  in  New  York,  for  this  amounts  but 
to  saying  that  the  same  thing  can  be  at  one  and  the  same  time  in  differ- 
ent places.  Further,  the  reasoning  above  expressed  disposes  of  the 
contention  that,  as  the  suit  in  Connecticut  involved  the  status  of  the 
husband,  therefore  the  courts  of  that  State  had  the  power  to  determine 
the  status  of  the  non-resident  wife  by  a  decree  which  had  obligatory 
force  outside  of  the  State  of  Connecticut.  Here,  again,  the  argument 
comes  to  this,  that,  because  the  State  of  Connecticut  had  jurisdiction 
to  fix  the  status  of  one  domiciled  within  its  borders,  that  State  also  had 
the  authority  to  oust  the  State  of  New  York  of  the  power  to  fix  the 
status  of  a  person  who  was  undeniably  subject  to  the  jurisdiction  of  that 
State. 

III.  It  is  urged  that  whilst  marriage  is  in  one  aspect  a  contract,  it  is 
nevertheless  a  contract  in  which  society  is  deeply  interested,  and,  there- 
fore, government  must  have  the  power  to  determine  whether  a  marriage 
exists  or  to  dissolve  it,  and  hence  the  Connecticut  court  had  jurisdiction 
of  the  relation  and  the  right  to  dissolve  it,  not  only  as  to  its  own  citizen 
but  as  to  a  citizen  of  New  York  who  was  not  subject  to  the  jurisdiction 
of  the  State  of  Connecticut.  The  proposition  involves  in  another  form 
of  statement  the  ?io)i  sctpiitur  which  we  have  previously  pointed  out ; 
that  Is,  that,  because  government  possesses  power  over  marriage,  there- 
fore the  existence  of  that  power  must  be  rendered  unavailing. 

Nor  is  the  contention  aided  by  the  proposition  that  because  it  is  im- 
possible to  conceive  of  the  dissolution  of  the  marriage  as  to  one  of  the 
parties  in  one  jurisdiction  without  at  the  same  time  saying  that  the  mar- 
riage is  dissolved  as  to  both  in  every  other  jurisdiction,  therefore  the 


SECT.  IV.]  HADDOCK   V.    HADDOCK.  245 

Connecticut  decree  should  have  obligatory  effect  in  New  York  as  to  the 
citizen  of  that  State.  For,  again,  by  a  change  of  form  of  statement, 
the  same  contention  which  we  have  disposed  of  is  reiterated.  Besides, 
the  proposition  presupposes  that,  because  in  the  exercise  of  its  power 
over  its  own  citizens,  a  State  may  determine  to  dissolve  the  marriage 
tie  by  a  decree  which  is  efficacious  within  its  borders,  therefore  such 
decree  is  in  all  cases  binding  in  every  other  jurisdiction.  As  we  have 
pointed  out  at  the  outset,  it  does  not  follow  that  a  State  may  not  exert 
its  power  as  to  one  within  its  jurisdiction  simply  because  such  exercise 
of  authority  may  not  be  extended  beyond  its  borders  into  the  jurisdiction 
and  authority  of  another  State.  The  distinction  was  clearly  pointed 
out  in  Blackinton  v.  Blackinton,  141  Mass.  432.  In  that  case  the  par- 
ties were  married  and  lived  in  Massachusetts.  The  husband  abandoned 
the  wife  without  cause  and  became  domiciled  in  New  York.  The  wife 
remained  at  the  matrimonial  domicil  in  Massachusetts  and  instituted  a 
proceeding  to  prohibit  her  husband  from  imposing  any  restraint  upon 
her  personal  liberty  and  for  separate  maintenance.  Service  was  made 
upon  the  husband  in  New  York.  The  court,  recognizing  fully  that 
under  the  circumstances  disclosed  the  domicil  of  the  husband  was  not 
the  domicil  of  the  wife,  concluded  that,  under  the  statutes  of  Massa- 
chusetts, it  had  authority  to  grant  the  relief  prayed,  and  was  then 
brought  to  determine  whether  the  decree  ought  to  be  made,  in  view  of 
the  fact  that  such  decree  might  not  have  extraterritorial  force.  But 
this  circumstance  was  held  not  to  be  controlling  and  the  decree  was 
awarded.  The  same  doctrine  was  clearly  expounded  by  the  Privy 
Council,  in  an  opinion  delivered  by  Lord  Watson,  in  the  divorce  case 
of  Le  Mesurier  v.  Le  Mesurier  (1895),  A.  C.  517,  where  it  was  said 
(p.  527)  : 

"When  the  jurisdiction  of  the  court  is  exercised  according  to  the 
rules  of  international  law,  as  in  the  case  where  the  parties  have  their 
domicil  within  its  forum,  its  decree  dissolving  their  marriage  ought  to 
be  respected  by  the  tribunals  of  every  civilized  country.  ...  On  the 
other  hand,  a  decree  of  divorce  a  vinculo,  pronounced  by  a  court  whose 
jurisdiction  is  solely  derived  from  some  rule  of  municipal  law  peculiar 
to  its  forum,  cannot,  when  it  trenches  upon  the  interests  of  any  other 
courtry  to  whose  tribunals  the  spouses  were  amenable,  claim  extraterri- 
torial authority." 

IV.  Tiie  contention  that  if  the  power  of  one  State  to  decree  a  disso- 
lution of  a  marriage  which  would  be  compulsory  upon  the  other  States 
be  Umited  to  cases  where  both  parties  are  subject  to  the  jurisdiction, 
the  right  to  obtain  a  divorce  could  be  so  hampered  and  restricted  as  t(5 
be  in  effect  impossible  of  exercise,  is  but  to  insist  that  in  order  to  favor 
the  dissolution  of  marriage  and  to  cause  its  permanency  to  depend  upon 
the  mere  caprice  or  wrong  of  the  parties,  there  should  not  be  applied 
to  the  right  to  obtain  a  divorce  those  fundamental  principles  which  safe- 
guard the  exercise  of  the  simplest  rights.  In  other  words,  the  argument 
but  reproduces  the  fallacy  already  exposed,  which  is,  that  one  State 


246  HADDOCK   V.   HADDOCK.  [CHAP.  III. 

must  be  endowed  with  the  attribute  of  destroying  the  authority  of  all 
the  others  concerning  tlie  dissolution  of  marriage  in  order  to  render  such 
dissolution  easy  of  procurement.     But  even  if  the  true  and  controlling 
principles  be  for  a  moment  put  aside  and  mere  considerations  of  incon- 
venience be  looked  at,  it  would  follow  that  the  preponderance  of  incon- 
venience would  be  against  the  contention  that  a  State  should  have  the 
power  to  exert  its  authority  concerning  the  dissolution  of  marriage  as 
to  those  not  amenable  to  its  jurisdiction.     By  the  application  of  that 
rule  each  State  is  given  the  power  of  overshadowing  the  authority  of  all 
the  other  States,  thus  causing  the  marriage  tie  to  be  less  protected  than 
any  other  civil  obligation,  and  this  to  be  accomplished  by  destroying 
individual  rights  without  a  hearing  and  by  tribunals  having  no  jurisdic- 
tion.    Further,  the  admission  that  jurisdiction  in  the  courts  of  one  State 
over  one  party  alone  was  the  test  of  the  right  to  dissolve  the  marriage 
tie  as  to  the  other  party  although  domiciled  in  another  State,  would  at 
once  render  such  test  impossible  of  general  application.     In  other  words, 
the  test,  if  admitted,  would  destroy  itself.     This  follows,  since  if  that 
test  were  the  rule,  each  party  to  the  marriage  in  one  State  would  have 
a  right  to  acquire  a  domicil  in  a  different  State  and  there  institute  pro- 
ceedings for  divorce.      It  would  hence  necessarily  arise  that  domicil 
would  be  no  longer  the  determinative  criterion,  but  the  mere  race  of 
diligence  between  the  parties  in  seeking  different  forums  in  other  States 
or  the  celerity  by  which  in  such  States  judgments  of  divorce  might  be 
procured  would  have  to  be  considered  in  order  to  decide  which  forum 
was  controlling. 

On  the  other  hand,  the  denial  of  the  power  to  enforce  in  another  State 
a  decree  of  divorce  rendered  against  a  person  who  was  not  sul)ject  to 
the  jurisdiction  of  the  State  in  which  the  decree  was  rendered  obviates 
all  the  contradictions  and  inconveniences  which  are  above  indicated.  It 
leaves  uncurtailed  the  legitimate  power  of  all  the  States  over  a  subject 
peculiarly  within  their  authority,  and  thus  not  only  enables  them  to 
maintain  their  public  policy  but  also  to  protect  the  individual  rights  of 
their  citizens.  It  does  not  deprive  a  State  of  the  power  to  render  a  de- 
cree of  divorce  susceptible  of  being  enforced  within  its  borders  as  to  the 
person  within  the  jurisdiction,  and  does  not  debar  other  States  from  giv- 
ing such  effect  to  a  judgment  of  that  character  as  they  may  elect  to  do 
under  mere  principles  of  State  comity.  It  causes  the  full  faith  and 
credit  clause  of  the  Constitution  to  operate  upon  decrees  of  divorce  in 
the  respective  States  just  as  that  clause  operates  upon  other  rights,  that 
is,  it  compels  all  the  States  to  recognize  and  enforce  a  judgment  of 
tlivorce  rendered  in  other  States  where  both  parties  were  subject  to  the 
jurisdiction  of  the  State  in  which  the  decree  was  rendered,  and  it  en- 
ables the  States  rendering  such  decrees  to  take  into  view  for  the  purpose 
of  the  exercise  of  their  authority  the  existence  of  a  matrimonial  domicil 
from  which  the  presence  of  a  party  not  physically  present  within  the 
borders  of  a  State  may  be  constructivel}'  found  to  exist. 

Having  thus  disposed  of  the  reasoning  advanced  to  sustain  the  asser- 


SECT.  IV.]  HADDOCK  V.    HADDOCK.  247 

tion  that  the  courts  of  the  State  of  New  York  were  bound  by  the  full 
faith  and  credit  clause  to  give  full  effect  to  the  Connecticut  decree,  we 
are  brought  to  consider  the  authorities  relied  upou  to  support  that 
proposition. 

Whilst  the  continental  and  English  authorities  are  not  alluded  to  in 
the  argument,  it  may  be  well,  in  the  most  summary  way,  to  refer  to 
them  as  a  means  of  illustrating  the  question  for  consideration.  The 
extent  of  the  power  which  independent  sovereignties  exercised  over  the 
dissolution  of  the  marriage  tie,  as  to  their  own  citizens,  gave  rise,  in  the 
nature  of  things,  to  controversies  concerning  the  extraterritorial  effect 
to  be  given  to  a  dissolution  of  such  tie  when  made  between  citizens  of 
one  country  by  judicial  tribunals  of  another  country  in  which  such  citi- 
zens had  become  domiciled.  We  do  not  deem  it  essential,  however, 
to  consider  the  conflicting  theories  and  divergent  rules  of  public  policy 
which  were  thus  engendered.  We  are  relieved  of  the  necessity  of  enter- 
ing upon  such  an  inquiry,  since  it  cannot  be  doubted  that  neither  the 
practice  nor  the  theories  controlling  in  the  countries  on  the  continent 
lend  the  slightest  sanction  to  the  contention  that  a  government,  simply 
because  one  of  the  parties  to  a  marriage  was  domiciled  within  its  bor- 
ders, where  no  matrimonial  doraicil  ever  existed,  had  power  to  render  a 
decree  dissolving  a  marriage  which  on  principles  of  international  law 
was  entitled  to  obligatory  extraterritorial  efiect  as  to  the  other  party  to 
the  marriage,  a  citizen  of  another  country.  Wharton  Conf.  Laws,  3d 
ed.,  V.  1,  p.  441,  §  209  and  notes. 

It  cannot  be  doubted,  also,  that  the  courts  of  England  decline  to  treat 
a^  toreign  decree  of  divorce  as  having  obligatory  extraterritorial  force 
when  both  parties  to  the  marriage  were  not  subject  to  the  jurisdiction 
oT  the  court  which  rendered  the  decree.  ,8haw  /•.  Gould,  L.  R.  3  H.  L. 
00  ;  Harvey  v.  Farnie,  8  App.  Cas.  43.  And,  although  it  has  been  sug- 
gested in  opinions  of  English  judges  treating  of  divorce  questions  that 
exceptional  occasions  might  arise  which  perhaps  would  justify  a  relax- 
ation of  the  rigor  of  the  presumption  that  the  domicil  of  the  husband 
was  the  domicil  of  the  wife,  per  Lords  Eldon  and  Redesdale,  in  Tovey 
V.  Lindsay,  1  Dow.  133,  140 ;  per  Lord  Westbury,  in  Pitt  v.  Pitt,  4 
Macq.  627,  640  ;  per  Brett,  L.  J.,  in  Niboyet  v.  Niljoyet,  4  P.  D.  1,  14  ; 
Briggs  V.  Briggs,  5  P.  D.  163,  165  ;  and  per  James  and  Cotton,  L.  JJ., 
in  Harvey  v.  Farnie,  6  P.  D.  47,  49,  the  courts  of  England,  in  cases 
where  the  jurisdiction  was  dependent  upon  domicil,  have  enforced  the 
presumption  and  treated  the  wife  as  being  within  the  jurisdiction  where 
the  husband  was  legally  domiciled.  But  this  conception  was  not  a  de- 
parture from  the  principle  uniformh'  maintained,  that,  internationally 
considered,  jurisdiction  over  both  parties  to  a  marriage  was  essential  to 
the  exercise  of  power  to  decree  a  divorce,  but  was  simply  a  means  of 
determining  by  a  legal  presumption  whether  both  parties  were  within 
the  jurisdiction.  Of  course  the  rigor  of  the  English  rule  as  to  the  dom- 
icil of  the  husband  being  the  domicil  of  the  wife  is  not  controlling  in 
this  court,  in  view  of  the  decisions  to  which  we  have  previously  referred, 
recognizing  the  right  of  the  wife,  for  the  fault  of  the  husband,  to  acquire 


248  HADDOCK   V.    HADDOCK.  [CHAP.  III. 

a  separate  domicil.     Barber  v.  Barber,  21  How.  582;  Cheever  u  Wil- 
son, 9  Wall.  108  ;  Atherton  v.  Atherton,  181  U.  S.  155. 

And  even  in  Scotland,  where  residence,  as  distinguished  from  domicil, 
was  deemed  to  authorize  the  exercise  of  jurisdiction  to  grant  divorces, 
it  was  invariabl}'  recognized  that  the  presence  within  the  jurisdiction  of 
both  parties  to  the  marriage  was  essential  to  authorize  a  decree  in  favor 
of  the  complainant.  Wharton,  Conf.  Laws,  §215,  v.  1,  p.  447;  per 
Lord  Westbury,  in  Shaw  v.  Gould,  L.  R.  3  H.  L.  88. 

As  respects  the  decisions  of  this  court.  We  at  once  treat  as  inappo- 
site, and  therefore  unnecessary  to  be  here  specially  reviewed,  those  hold- 
ing, a,  that  where  the  domicil  of  a  plaintiff  in  a  divorce  cause  is  in  the 
Srtate  where  the  suit  was  brought,  and  the  defendant  appears  and  de- 
fends, as  both  parties  are  before  the  court,  there  is  power  to  render 
a  decree  of  divorce  which  will  be  entitled  in  other  States  to  recognition 
under  the  full  faith  and  credit  clause  (Cheever  ik  Wilson,  siipni) ;  b,  that, 
as  distinguished  from  legal  domicil,  mere  residence  within  a  particular 
State  of  the  plaintiff  in  a  divorce  cause  brought  in  a  court  of  such  State 
is  not  sufficient  to  confer  jurisdiction  upon  such  court  to  dissolve  the 
marriage  relation  existing  between  the  plaintiff  and  a  non-resident  de- 
fendant. Andrews  r.  Andrews,  188  U.  S.  14  :  Streitwolf  r.  Streitwolf, 
181  U.  S.  179;  Bell  r.  Bell,  181  U.  S.  175.  This  brings  us  to  again 
consider  a  case  heretofore  referred  to,  principally  relied  upon  as  sus- 
taining the  contention  that  the  domicil  of  one  party  alone  is  sufficient 
to  confer  jurisdiction  upon  a  judicial  tribunal  to  render  a  decree  of 
divorce  having  extraterritorial  effect,  viz.,  Atherton  r.  Atherton,  181 
U.  S.  155.  The  decision  in  that  case,  however,  as  we  have  previously 
said,  was  expressly  placed  upon  the  ground  of  matrimonial  domicil. 
This  is  apparent  from  the  following  passage,  which  we  excerpt  from  the 
opinion,  at  page  171  : 

"This  case  does  not  involve  the  validity  of  a  divorce  granted,  on 
constructive  service,  by  the  (^urt  of  a  State  in  which  ouh'  one  of  the 
parties  ever  had  a  domicil ;  nor  the  question  to  what  extent  the  good 
faith  of  the  domicil  ma}-  be  afterwards  inquired  into.  In  this  case  the 
divorce  in  Kentuck}-  was  by  the  court  of  the  State  which  had  always 
been  the  undoubted  domicil  of  the  husband,  and  whicli  was  the  only 
matrimonial  domicil  of  the  husband  and  wife.  The  single  question  to 
be  decided  is  the  validity  of  that  divorce,  granted  after  such  notice  had 
been  given  as  was  required  by  the  statutes  of  Kentucky." 

The  contention,  therefore,  that  the  reasoning  of  the  opinion  demon- 
strates that  tlie  domicil  of  one  of  the  parties  alone  was  contemplated  as 
being  sufficient  to  found  jurisdiction,  but  insists  that  the  case  decided  a 
proposition  which  was  excluded  in  unmistakable  language.  But,  more- 
over, it  is  clear,  when  the  facts  which  were  involved  in  the  Atherton 
case  are  taken  into  view,  that  the  case  could  not  have  been  decided 
merely  upon  the  ground  of  the  domicil  of  one  of  the  parties,  because 
that  consideration  alone  would  have  afforded  no  solution  of  the  problem 
which  tlie  case  presented.  The  salient  facts  were  these  :  The  husband 
lived  in  Kentuckv,  married  a  citizen  of  New  York,  and  the  married 


SECT.  IV.]  HADDOCK   V.   HADDOCK.  249 

couple  took  up  their  domicil  at  the  home  of  the  husband  in  Kentucky, 
where  they  continued  to  reside  and  where  children  were  born  to  them. 
The  wife  left  the  matrimonial  domicil  and  went  to  New  York.  The 
husband  sued  her  in  Kentucky  for  a  divorce.  Before  the  Kentucky  suit 
merged  into  a  decree  the  wife,  having  a  residence  in  New  York  sufficient, 
under  ordinar}-  circumstances,  to  constitute  a  domicil  in  that  State,  sued 
the  husband  in  the  courts  of  New  York  for  a  limited  divorce.  Thus  the 
two  suits,  one  by  the  husband  against  the  wife  and  the  other  by  the  wife 
against  the  husband,  were  pending  in  the  respective  States  at  the  same 
time.  The  husband  obtained  a  decree  in  the  Kentucky  suit  before  the 
suit  of  the  wife  had  been  determined,  and  pleaded  such  decree  in  the  suit 
brought  by  the  wife  in  New  York.  The  New  York  court,  however,  re- 
fused to  recognize  the  Kentucky  decree  and  the  case  came  here,  and  this 
court  decided  that  the  courts  of  New  York  were  bound  to  give  effect  to 
the  Kentucky  decree  by  virtue  of  the  full  faith  and  credit  clause.  Under 
these  conditions  it  is  clear  that  the  case  could  not  have  been  disposed 
of  on  the  mere  ground  of  the  individual  domicil  of  the  parties,  since 
upon  that  hypothesis,  even  if  the  efficacy  of  the  individual  domicil  had 
been  admitted,  no  solution  would  have  been  thereby  afforded  of  the 
problem  which  would  have  arisen  for  decision,  that  problem  being  which 
of  the  two  courts  wherein  the  conflicting  proceedings  were  pending  had 
had  the  paramount  right  to  enter  a  binding  decree.  Having  disposed 
of  the  case  upon  the  principle  of  matrimonial  domicil,  it  cannot  in  reason 
be  conceived  that  the  court  intended  to  express  an  opinion  upon  the 
soundness  of  the  theory  of  individual  and  separate  domicil  which,  iso- 
latedly  considered,  was  inadequate  to  dispose  of,  and  was,  therefore, 
irrelevant  to,  the  question  for  decision.   .   .  .^ 

Without  questioning  the  power  of  the  State  of  Connecticut  to  enforce 
within  its  own  borders  the  decree  of  divorce  which  is  here  in  issue,  and 
without  intimating  a  doubt  as  to  the  power  of  the  State  of  New  York  to 
give  to  a  decree  of  that  character  rendered  in  Connecticut,  within  the 
borders  of  the  State  of  New  York  and  as  to  its  own  citizens,  such  effi- 
cacy as  it  may  be  entitled  to  in  view  of  the  public  policy  of  that  State, 
we  hold  that  the  decree  of  the  court  of  Connecticut  rendered  under  the 
circumstances  stated  was  not  entitled  to  obligatory  enforcement  in  the 
State  of  New  York  by  virtue  of  the  full  faith  and  credit  clause.  It 
therefore  follows  that  the  court  below  did  not  violate  the  full  faith  and 
credit  clause  of  the  Constitution  in  refusing  to  admit  the  Connecticut 
decree  in  evidence;  and  its  judgment  is,  therefore, 

■Affirmed. 

Holmes,  J.,  with  whom  concurred  Harlan,  Brewer,  and  Brown,  JJ., 

dissenting.  - 

I  do  not  suppose  that  civilization  will  come  to  an  end  whichever  way 

1  The  learned  judge  here  examined  numerous  decisions  of  State  courts,  and  con- 
cluded that  they  did  not  establish  the  proposition  that  such  a  decree  as  the  one  here 
examined  was  entitled  to  full  faith  and  credit.  —  Ed. 

2  Another  dissenting  opinion  of  Brown,  J.,  is  omitted. — Ed. 


250  HADDOCK   V.   HADDOCK.  [cUAP.  IIL 

this  case  Is  decided.  But  as  the  reasoning  which  prevails  in  the  mind 
of  the  majority  does  not  convince  me,  and  as  I  think  that  the  decision 
not  only  reverses  a  previous  well-considered  decision  of  this  court  but 
is  likely  to  cause  considerable  disaster  to  innocent  persons  and  to  bas- 
tardize children  hitherto  supposed  to  be  the  offspring  of  lawful  marriage, 
I  think  it  proper  to  express  my  views.  Generally  stated,  the  issue  is 
whether,  when  a  husband  sues  in  the  court  of  his  domicil  for  divorce 
from  an  absent  wife  on  the  ground  of  her  desertion,  the  jurisdiction  of 
the  court,  if  there  is  no  personal  service,  dei)en(ls  upon  the  merits  of  the 
CTTSf: — 11'  tlit^  Vvlfe  did  desert  her  husband  in  fact,  or  if  she  was  served 
witli  process,  I  understand  it  not  to  be  disputed  that  a  decree  of  divorce 
in  the  case  supposed  would  be  conclusive,  and  so  I  understand  it  to  be 
admitted  that  if  the  court  of  another  State  on  a  retrial  of  the  merits 
finds  them  to  have  been  decided  rightly  its  duty  will  be  to  declare  the 
decree  a  bar  to  its  inquiry.  The  first  form  of  the  question  is  whether  it 
has  a  right  to  inquire  into  the  merits  at  all.  But  I  think  that  it  will 
appear  directly  that  the  issue  is  narrower  even  than  that. 

In  Atherton  v.  Atherton,  181  U.  S.  155,  a  divorce  was  granted  on 
the  ground  of  desertion,  to  a  husband  in  Kentucky  against  a  wife  who 
had  established  herself  in  New  York.  She  did  not  appear  in  the  suit 
and  the  only  notice  to  her  was  by  mail.  Before  the  decree  was  made 
she  sued  in  New  York  for  a  divorce  from  bed  and  board,  but  pending 
the  latter  proceedings  the  Kentucky  suit  was  brought  to  its  end.  The 
husband  appeared  in  New  York  and  set  up  the  Kentucky  decree.  The 
New  York  court  found  that  the  wife  left  her  husband  because  of  his 
cruel  and  abusive  treatment,  without  fault  on  her  part,  held  that  the 
Kentucky  decree  was  no  bar,  and  granted  the  wife  her  divorce  from  bed 
and  board.  The  New  York  decree,  after  being  affirmed  by  the  Court 
of  Appeals,  was  reversed  by  this  court  on  the  ground  that  it  did  not 
give  to  the  Kentucky  decree  the  faitli  and  credit  which  it  had  by  law  in 
Kentucky.  Of  course,  if  the  wife  left  her  husband  because  of  his  cruelty 
and  without  fault  on  her  part,  as  found  by  the  New  York  court,  she  was 
not  guilty  of  desertion.  Yet  this  court  held  that  the  question  of  her 
desertion  was  not  open  but  was  conclusively  settled  by  the  Kentucky 
decree. 

There  is  no  difference,  so  far  as  I  can  see,  between  Atherton  v.  Ath- 
erton and  the  present  case,  except  that  in  Atherton  i\  Atherton  the 
forum  of  ihe  first  decree  was  that  of  the  matrimonial  domicil,  whereas 
in  tliis  the  court  was  that  of  a  domicil  afterwards  acquired.  After  that 
decision  any  general  objection  to  the  effect  of  the  Connecticut  decree 
on  the  ground  of  the  wife's  absence  from  the  State  comes  too  late.  So 
does  any  general  objection  on  the  ground  that  to. give  it  etFect  invites  a 
race  of  diligence.  I  therefore  pass  such  arguments  without  discussion, 
although  they  seem  to  me  easy  to  answer.  Moreover,  Atherton  v. 
Atherton  decides  that  tlie  jurisdiction  of  the  matrimonial  domicil,  at 
least,  to  grant  a  divorce  for  the  wife's  desertion  without  personal  ser- 
vice, does  not  depend  upon  the  fact  of  her  desertion,  but  continues  even 
if  her  husband's  cruelty  has  driven  her  out  of  the  State  and  she  has  ac- 


SECT.  IV.]  HADDOCK  V.    HADDOCK.  251 

quired  a  separate  domicil  elsewhere  upon  the  principles  which  we  all 
agree  are  recognized  by  this  court. 

I  can  see  no  ground  for  giving  a  less  effect  to  the  decree  when  the 
husband  changes  his  domicil  after  the  separation  has  taken  place.  The 
question  whether  such  a  decree  should  have  a  less  effect  is  the  only 
question  open,  and  the  issue  is  narrowed  to  that.  No  one  denies  that 
the  husband  may  sue  for  divorce  in  his  new  domicil,  or,  as  I  have  said, 
that  if  he  gets  a  decree  when  he  really  has  been  deserted,  it  will  be 
binding  everywhere.  Hawkins  v.  Ragsdale,  80  Ky.  353,  cited  181  U.  S. 
162;  Gheely  t;.  Clayton,  110  U.  S.  701,  705.  It  is  unnecessary  to  add 
more  cases.  The  only  reason  which  I  have  heard  suggested  for  holding 
the  decree  not  binding  as  to  the  fact  that  he  was  deserted,  is  that  if  he 
is  deserted  his  power  over  the  matrimonial  domicil  remains  so  that  the 
domicil  of  the  wife  accompanies  him  wherever  he  goes,  whereas  if  he  is 
the  deserter  he  has  no  such  power.  Of  course  this  is  a  pure  fiction,  and 
fiction  always  is  a  poor  ground  for  changing  substantial  rights.  It 
seems  to  me  also  an  inadequate  fiction,  since  by  the  same  principle,  if 
he  deserts  her  in  the  matrimonial  domicil,  he  is  equally  powerless  to 
keep  her  domicil  there,  if  she  moves  into  another  State.  The  truth  is 
that  jurisdiction  no  more  depends  upon  both  parties  having  their  domicil 
within  the  State,  than  it  does  upon  the  presence  of  the  defendant  there, 
as  is  shown  not  only  by  Atherton  v.  Atherton,  but  by  the  rights  of  the 
wife  in  the  matrimonial  domicil  when  the  husband  deserts. 

There  is  no  question  that  a  husband  may  establish  a  new  domicil  for 
himself,  even  if  he  has  deserted  his  wife.  Yet  in  these  days  of  equality 
I  do  not  suppose  that  it  would  be  doubted  that  the  jurisdiction  of  the 
■  court  of  the  matrimonial  domicil  to  grant  a  divorce  for  the  desertion 
remained  for  her,  as  it  would  for  him  in  the  converse  case.  See  Cheever 
V.  Wilson,  9  Wall.  108.  Indeed,  in  Ditson  v.  Ditson,  4  R.  I.  87,  which, 
after  a  quotation  of  Judge  Cooley's  praise  of  it,  is  stated  and  j-elied 
upon  as  one  of  the  pillars  for  the  decision  of  Atherton  v.  Atherton,  a 
wife  was  granted  a  divorce,  without  personal  service,  in  the  State  of  a 
domicil  acquired  by  her  after  separation,  on  the  sole  ground  that  in  the 
opinion  of  the  court  its  decree  would  be  binding  everywhere.  If  that  is 
the  law  it  disposes  of  the  case  of  a  husband  under  similar  circumstances, 
that  is  to  say  of  the  present  case,  a  fortiori ;  for  I  suppose  that  the 
notion  that  a  wife  can  have  a  separate  domicil  from  her  husband  is  a 
modern  idea.  At  least  Ditson  v.  Ditson  confirms  the  assumption  that 
jurisdiction  is  not  dependent  on  the  wife's  actually  residing  in  the  same 
State  as  her  husband,  which  has  been  established  by  this  court.  Ather- 
ton V.  Atherton,  181  U.  S.  155  ;  Maynard  v.  Hill,  125  U.  S.  190  ;  Cheever 
V.  Wilson,  9  Wall.  108.  When  that  assumption  is  out  of  the  way,  I 
repeat  that  I  cannot  see  any  ground  for  distinguishing  between  the  ex- 
tent of  jurisdiction  in  the  matrimonial  domicil  and  that,  admitted  to 
exist  to  some  extent,  in  a  domicil  later  acquired.  I  also  repeat  and 
emphasize  that  if  the  finding  of  a  second  court,  contrary  to  the  decree, 
that  the  husband  was  the  deserter,  destroys  the  jurisdiction  in  the  later 
acquired  domicil  because  the  domicil  of  the  wife  does  not  follow  his,  the 


252  -  HADDOCK    V.    HADDOCK.  [CHAP.  III. 

same  fact  ought  to  destro}'  the  jurisdiction  in  the  matrimonial  domicil  if 
in  consequence  of  the  husband's  conduct  the  wife  has  left  the  State. 
But  Atherton  v.  Atherton  decides  that  it  does  not. 

It  is  important  to  bear  in  mind  that  the  present  decision  purports  to 
respect  and  not  to  overrule  Atherton  v.  Atherton.  For  that  reason, 
among  others,  I  spend  no  time  in  justifying  that  case.  And  yet  it  ap- 
pears to  me  that  the  whole  argument  which  prevails  with  the  majority 
of  the  court  is  simply  an  argument  that  Atherton  v.  Atherton  is  wrong. 
I  have  tried  in  vain  to  discover  anything  tending  to  show  a  distinction 
between  that  case  and  this.  It  is  true  that  in  Atherton  v.  Atherton,  Mr. 
JustieeGray  confined  the  decision  to  the  ease  before  the  court.  Evidently', 
I  should  say,  from  internal  evidence,  in  deference  to  scruples  which  he  did 
not  share.  But  a  court  bj'  announcing  that  its  decision  is  confined  to  the 
facts  before  it  does  not  decide  in  advance  that  logic  will  not  drive  it  fur- 
ther when  new  facts  arise.  New  facts  have  arisen.  I  state  what  logic 
seems  to  me  to  require  if  that  case  is  to  stand,  and  I  think  it  reasonable 
to  ask  for  an  articulate  indication  of  how  it  is  to  be  distinguished. 

I  have  heard  it  suggested  that  the  difference  is  one  of  degree.  I  am 
the  last  man  in  the  world  to  quarrel  with  a  distinction  simply  because  it 
is  one  of  degree.  Most  distinctions,  in  my  opinion,  are  of  that  sort,  and 
are  none  the  worse  for  it.  But  the  line  wliich  is  drawn  must  be  justified 
b}-  the  fact  that  it  is  a  little  nearer  than  the  nearest  opposing  case  to 
one  pole  of  an  admitted  antithesis.  When  a  crime  is  made  burglary  by 
the  fact  that  it  was  committed  thirtv  seconds  after  one  hour  after  sun- 
set, ascertained  according  to  mean  time  in  the  place  of  the  act,  to  take 
an  example  from  Massachusetts  (R.  L.  c.  219,  §  10),  the  act  is  a  little 
nearer  to  midnight  than  if  it  had  been  committed  one  minute  earlier, 
and  no  one  denies  that  there  is  a  difference  between  night  and  da}'. 
The  fixing  of  a  point  when  day  ends  is  made  inevitable  b}-  the  admis- 
sion of  that  difference.  But  I  can  find  no  basis  for  giving  a  greater 
jurisdiction  to  the  courts  of  the  husband's  domicil  when  the  married 
pair  happens  to  have  resided  there  for  a  month,  even  if  with  intent  to 
make  it  a  permanent  abode,  than  if  they  had  not  lived  there  at  all. 

I  may  add,  as  a  consideration  distinct  from  those  which  I  have  urged, 
that  I  am  unable  to  reconcile  with  the  requirements  of  the  Constitution, 
Art.  4,  §  1,  the  notion  of  a  judgment  being  valid  and  binding  in  the 
State  where  it  is  rendered,  and  yet  depending  for  recognition  to  the 
same  extent  in  other  States  of  the  Union  upon  the  comity  of  those 
States.  No  doubt  some  color  for  such  a  notion  may  be  found  in  State 
decisions.  State  courts  do  not  always  liave  tlie  Constitution  of  the 
United  States  vividly  present  to  their  minds.  I  am  responsible  for  lan- 
guage treating  what  seems  to  me  the  fallacy  as  open,  in  Blackinton  v. 
Blackinton.  141  Mass.  402,  436.  But  there  is  no  exception  in  the  words 
of  the  Constitution.  "  If  the  judguuMit  is  conclusive  in  the  State  wliere 
it  was  pronounced  it  is  equally  conclusive  everywhere."  Christmas  v. 
Russell,  5  Wall.  290,  302  ;  Marshall,  C.  J.,  in  Hampton  v.  McConnel, 
3  Wheat.  234;  Mills  r.  Duryee,  7  Cranch,  481,  485;  Story,  Const. 
§  1313.     See  also  Hancock  National  Bank  v.  Farnum,  176  U.  S.  640, 


SECT.  IV.]  TURNER   V.   THOMPSON.  253 

644,  645.  I  find  no  qualification  of  the  rule  In  "Wisconsin  v.  Pelican 
Ins.  Co.,  127  U.  S.  265.  That  merely  decided,  with  regard  to  a  case 
not  within  the  words  of  the  Constitution,  that  a  State  judgment  could 
not  be  sued  upon  when  the  facts  which  it  estabUshed  were  not  a  cause 
of  action  outside  the  State.  It  did  not  decide  or  even  remotely  suggest 
that  the  judgment  would  not  be  conclusive  as  to  the  facts  if  in  any  way 
those  facts  came  in  question.  It  is  decided  as  well  as  admitted  that  a 
decree  like  that  rendered  in  Connecticut  in  favor  of  a  deserting  husband 
is  binding  in  the  State  where  it  is  rendered.  Maynard  v.  Hill,  125  U.  S. 
190.  I  think  it  enough  to  read  that  case  in  order  to  be  convinced  that  at 
that  time  the  court  had  no  thought  of  the  divorce  being  confined  in  its 
effects  to  the  Territory  where  it  was  granted,  and  enough  to  read  Ather- 
ton  V.  Atherton  to  see  that  its  whole  drift  and  tendency  now  are  reversed 
and  its  necessary  consequences  denied. 


TURNER  V.   THOMPSON". 
High  Court  of  Justice,  Probatk  Division.     1888. 

[Reported  13  Probate  Division,  37.] 

SiK  James  Hannen,  President.  The  facts  of  this  case  are  as  fol- 
lows :  The  petitioner,  Georgiana  Turner,  was  a  British  subject,  dom- 
iciled in  England,  and,  on  November  7,  1872,  she  married,  in  England, 
the  respondent,  who  is  a  citizen  of  the  United  States,  domiciled  there. 
He  was  in  the  United  States  marine  service,  and  he  was  from  time  to 
time  engaged  professionall}'  away  from  his  wife  ;  but  they  met  and 
coliabited  together  at  various  places  in  the  United  States  and  elsewhere. 
In  1879  she  instituted  proceedings  in  the  United  States  for  a  decree 
dissolving  the  marriage  on  the  ground  of  her  husband's  incompetency  ; 
the  form  of  decree  in  the  United  States  being  a  dissolution  of  mar- 
riage, and  not,  as  in  this  country,  a  declaration  that  the  marriage  was 
null  and  void.  That  is  a  mere  difference  in  form.  The  marriage  was 
accordingly  dissolved,  and  she  has  now  returned  to  England  to  institute 
proceedings  here  for  the  purpose  of  having  her  marriage  declared  null 
and  void.  The  case  came  before  my  brother  Butt,  and  he  raised  the 
question  whether  there  was  anything  on  which  this  court  could  proceed, 
and  whether  this  court  has  any  jurisdiction,  because,  of  course,  if  the 
marriage  were  absolutely  dissolved  by  the  court  in  the  United  States, 
then  there  exists  no  marriage  between  the  parties  upon  which  this  court 
can  be  called  on  to  pronounce  an  opinion.  Mr.  Justice  Butt  ordered 
the  case  to  be  argued  by  the  Queen's  Proctor,  and  it  now  comes  before 

me. 

I  am  of  opinion  that  this  court  has  no  jurisdiction,  in  the  sense  I 
have  already  mentioned  ;  that  is,  that  the  marriage  was  totally  and 
absolutely  dissolved  by  the  decree  of  the  court  in  the  United  States  ; 
and  therefore  that  there  is  no  marriage  between  the  parties,  which  could 
be  dissolved  or  declared  null  and  void  by  this  court. 


254  CUMMINGTON    V.    BELCHERTOWN.  [CHAP.  III. 

The  marriage,  though  it  took  place  in  England,  must,  no  doubt, 
according  to  the  decision  in  Harvey  v.  Farnie,  8  App.  Cas.  43,  which 
went  up  to  the  House  of  Lords,  be  taken  to  be  prima  facie  an  Ameri- 
can marriage,  because  the  husband  was  domiciled  in  the  United  States, 
and  prima  facie  the  courts  of  the  place  of  his  domicile  had  jurisdiction 
in  the  matter.  If  the  parties  had  remained  in  England,  then,  under 
some  circumstances,  the  case  of  Niboyet  i'.  Niboyet,  3  P.  D.  52,  is  an 
authority  for  saying  that  the  courts  of  this  country  would  have  jurisdic- 
tion. But,  as  a  matter  of  fact,  these  parties  after  the  solemnization  of 
the  marriage  went  to  the  United  States  and  there  took  up  their  perma- 
nent abode.  I  am  of  opinion  that  the  wife  did  completely  acquire  a 
domicile  in  the  United  States.  I  know  it  is  alleged  on  her  behalf  that 
that  is  not  so.  It  is  said  she  was  by  origin  a  British  subject,  and  as  by 
the  law  of  England  the  matter  in  dispute  between  her  and  her  husband 
would  have  been  disposed  of  in  the  form  of  a  declaration  that  the  mar- 
riage was  null,  she  therefore  was  entitled  to  treat  the  marriage  as  null 
and  void  from  the  beginning,  so  that  she  never  lost  her  English  domicile 
at  all.  The  fallacy  which  underlies  that  argument  appears  to  me  to  be 
evident  from  this.  A  woman  when  she  marries  a  man,  not  only  by  con- 
struction of  law,  but  absolutely  as  a  matter  of  fact,  does  acquire  the 
domicile  of  her  husband  if  she  lives  with  him  in  the  country  of  his 
domicile.  There  is  no  ground  here  for  contending  that  she  did  not 
take  up  that  domicile.  She  had  the  intention  of  taking  up  her  perma- 
nent abode  with  him,  and  of  making  his  country  her  permanent  home. 
It  is  to  be  remembered  that  a  marriage  by  the  law  of  England,  when 
one  of  the  parties  is  incompetent,  is  not  a  marriage  absolutel}'  void,  but 
onl}'  voidable  at  the  instance  of  the  injured  party.  If  she  had  thought 
fit  she  might  have  remained  a  wife,  enjoying  all  the  advantages  of  a 
wife,  save  that  of  a  marital  intercourse.  It  was  only  in  1879,  the 
marriage  having  taken  place  in  1872,  that  she  instituted  proceedings 
for  getting  that  marriage  put  aside. 

I  am  of  opinion  that  at  the  time  of  the  institution  of  that  suit,  which 
is  the  turning  point  of  the  proceeding,  her  domicile  was,  in  fact  and  in 
law,  in  the  United  States  ;  therefore  the  United  States  courts  had  juris- 
diction in  the  matter,  and  upon  this  ground  I  think  the  petition  must 
be  dismissed. 


J 


CUMMINGTON   v.   BELCHERTOWN. 

Supreme  Judicial  Court  of  Massachusetts.     1889. 

[Reported  149  Massachusetts,  223.] 

Devens,  J.  Mrs.  Angle  L.  Richards,  the  expenses  of  whose  support 
as  an  insane  pauper  are  here  in  controversy,  had,  as  Angle  L.  Root,  a 
legal  settlement  in  the  defendant  town  at  the  time  of  her  marriage. 
She  acquired  one  in  the  plaintiff  town  by  her  marriage,  on  June  10, 


SECT.  IV.]  CUMMIXGTON    V.   BELCHERTOWN.  255 

1873,  with  Charles  A.  Richards,  who  was  there  settled.  Milford  v. 
Worcester,  7  Mass.  48.  It  is  the  contention  of  the  pUiintiflf,  that,  the 
marriage  of  the  pauper  having  been  legally  annulled  as  having  been 
procured  by  fraud,  her  settlement  in  Cumraington  thus  gained  is  de- 
stroyed, and  that  in  Belchertown  is  revived,  it  having  been  suspended 
only  during  the  de  facto  existence  of  the  mari'iage. 

It  was  held  in  Dalton  v.  Bernardston,  9  Mass.  201,  that  a  woman  ac- 
quiring a  settlement  by  her  marriage  under  the  St.  of  1793,  c.  34  (Pub. 
Sts.  c.  83,  §  1,  cl.  1),  did  not  lose  her  settlement  bv  a  divorce,  except 
for  a  cause  which  would  show  the  marriage  to  have  been  void.  In  the 
latter  case,  there  would  have  been  no  such  marriage  as  the  statute  in- 
tended as  the  means  of  acquiring  a  settlement.  Assuming  that  the  law 
would  be  the  same  where  a  marriage  not  originally  void,  but  voidable 
on  the  ground  of  fraud,  or  for  an}'  other  reason,  was  declared  void,  we 
consider  the  question  whether  the  plaintiff  has  shown  any  sufficient  evi- 
dence of  a  decree  annulling  the  marriage  bj-  which  the  defendant  or 
others  collaterally  affected  by  the  marriage  or  the  dissolution  of  it  would 
be  bound.  If  the  pauper  herself  would  not  be  bound  by  such  a  decree, 
it  is  quite  clear  that  the  defendant  would  not  be,  whether  the  marriage 
was  absolutely  void  or  voidable  onh-.  Not  being  a  party  to  the  decree, 
and  unable,  therefore,  to  take  any  steps  to  reverse  it,  the  defendant  is 
not  precluded  from  showing  in  a  collateral  proceeding  that  the  decree 
was  erroneous,  or  that  it  has  no  effect  such  as  the  plaintiff  claims  for 
it.  The  plaintiff  contends  that  a  decree  valid  as  against  the  pauper,  by 
which  her  marriage  with  Richards  has  been  annulled,  has  been  rendered 
by  the  Supreme  Court  of  New  York,  having  jurisdiction  both  of  the 
subject-matter  and  of  the  parties. 

It  appeared  that  Richards  and  his  wife  lived  together  in  this  State  for 
about  a  year  and  three  months,  when,  in  October,  1874,  Mrs,  Richards 
was  adjudged  insane,  and  legally  committed  to  the  lunatic  hospital  in 
Northampton,  where  she  remained,  with  the  exception  of  short  inter- 
vals of  time  during  which  she  was  in  the  custody  of  her  pai-ents,  until 
September  20,  1877,  when  she  was  again  and  finally  committed  to  the 
hospital,  and  has  remained,  and  now  remains,  hopelessl}-  insane,  Rich- 
ards never  cohabited  with  her  after  her  first  committal  to  the  hospital ; 
and  at  some  time  thereafter,  but  at  what  time  does  not  appear,  removed 
to  the  State  of  New  York,  without,  however,  any  purpose  of  there  ob- 
taining a  divorce,  and  without  then  having  it  in  mind.  On  November 
14,  1881,  Richards,  having  only  a  short  time  before  been  informed  for 
the  first  time  that  his  wife  had  been  insane  before  their  marriage,  com- 
menced a  proceeding  in  New  York  to  have  the  marriage  annulled,  on 
the  ground  that  he  was  induced  to  enter  into  it  bv  fraud,  and,  after  a 
notice  to  Mrs.  Richards  by  a  summons  served  upon  her  while  an  inmate 
of  the  Northampton  Hospital,  a  decree  annulling  the  marriage  on  the 
ground  that  the  consent  of  Richards  to  the  marriage  was  obtained  by 
fraud  was  rendered  on  March  30,  1882.  A  "transcript  of  the  doings 
and  record  of,  and  testimony  in,  the  Supreme  Court,  County  of  Fulton, 


256  CUMMINGTON   V.    BELCHERTOWN.  [CHAP.  III. 

State  of  New  York,"  was  used  at  the  trial  in  the  Superior  Court,  and 
the  decree  there  rendered  was  reUed  on  b}'  the  plaintiff  as  establish- 
ing the  fact  of  a  legal  dissolution  of  the  marriage,  by  which  the  rights 
of  the  plaintiff  and  of  the  defendant  would  be  affected  in  this 
Commonwealth. 

AVliile  b}'  the  Constitution  of  the  United  States,  Art.  4,  §  1,  full  faith 
and  credit  are  to  be  given  to  the  judgments  of  other  States,  the  juris- 
diction of  the  courts  rendering  them  is  open  to  inquiry,  both  as  regards 
the  subject-matter  of  the  controversy  and  the  parties  thereto.  The  re- 
citals of  the  record  are  not  conclusive  evidence,  and  a  party,  or  one 
affected  collaterally  by  the  judgment,  ma}'  show  that  the  court  had  no 
jurisdiction  over  the  party  such  as  it  assumed  to  exercise.  Mrs.  Rich- 
ards was,  when  the  proceedings  were  commenced  and  concluded,  an 
utterly  insane  woman.  This  not  onl}'  appears  by  the  finding  of  the 
Superior  Court,  but  by  all  the  proceedings  of  the  New  York  court.  It 
is  averred  in  the  petition  addressed  to  it,  and  the  allegations  of  the 
petition  are  found  by  the  referee  to  whom  the  inquiries  of  fact  were 
referred;  and  by  that  court,  to  have  been  true.  It  appears  also  b}'  the 
return  of  the  summons,  and  most  clearly  by  the  evidence  taken  before 
the  referee.  At  no  time  did  she,  or  any  one  on  her  behalf,  appear  be- 
fore the  referee  or  the  court.  Yet  no  guardian,  next  friend,  or  other 
person  was  appointed  to  represent  her,  and  a  decree  annulling  her  mar- 
riage was  rendered  against  a  person  whom  the  record  and  evidence 
showed  to  be  insane,  and  whose  rights  were  wholh*  unprotected.  She 
had  no  actual  residence  in  New  York  at  any  time.  Her  husband  had 
abandoned  her  here  on  account  of  her  insanity  some  time  before  he 
went  to  New  York,  had  made  no  provision  for  her  support,  and  she  had 
always  resided  in  this  State,  which  was  her  domicile  of  origin. 

That  a  decree  of  divorce  rendered  under  similar  circumstances  of 
residence  and  condition  of  the  wife  in  another  State  would  not  be  re- 
cognized in  the  State  of  New  York,  or  allowed  in  any  way,  directl}'  or 
indirectly,  there  to  affect  an}-  rights,  whether  of  person  or  property,  of 
the  party  against  whom  it  had  been  made,  appears  clearly  from  its 
decisions.  People  v.  Baker,  76  N.  Y.  78  ;  Jones  ik  Jones,  108  N.  Y. 
415.  We  shall  not  have  occasion  to  consider  what  would  be  the  effect 
that  should  be  given  here  to  a  decree  of  divorce,  under  the  circum- 
stances above  stated,  if  such  had  been  rendered  by  the  New  York 
court.  Such  a  decree  necessarily  implies  the  original  existence  of  a 
lawful  marriage.  A  decree  annulling  a  marriage  upon  the  ground  that 
it  was  contracted  under  such  circumstances  that  the  party  petitioning 
has  a  right  to  have  it  so  annulled,  stands  upon  quite  different  grounds. 
The  validity  of  a  marriage  depends  upon  the  question  whether  it  was 
valid  where  it  was  contracted.  To  this  rule  there  are  but  two  excep- 
tions :  marriages  which  are  deemed  contrary  to  the  law  of  nature  as 
generally  recognized  in  Christian  countries,  and  those  marriages  which 
the  Legislature  of  the  Commonwealth  has  declared  shall  not  be  valid  be- 
cause contrary  to  the  policy  of  our  own  laws.     Commonwealth  v.  Lane, 


SECT.  IV.]  CUMMINGTON   V.   BELCIIERTOWN.  257 

113  Mass.  458.  Even  wbeu  parties  had  gone  from  this  Commonwealth 
into  anottier  State  with  intent  of  evading  our  own  laws,  and  had 
there  married,  it  was  held  reluctantly,  in  the  absence  of  a  statute  declar- 
ing marriage  solemnized  there  with  such  intent  to  be  void  here,  that 
their  validit}'  must  be  recognized.  Med  way  v.  Needham,  16  Mass.  157  ; 
Putnam  v.  Putnam,  8  Pick.  433. 

Without  discussing  the  failure  to  appoint  a  guardian,  the  service  in 
the  case  at  bar  on  Mrs.  Richards  can  have  given  the  New  York  court 
no  jurisdiction  over  her  personally.  To  hold  that  her  domicile  might 
be  changed  to  any  other  State  by  the  act  of  her  husband  in  removing 
thereto  after  he  had  abandoned  her  here  and  ceased  to  support  her,  and 
thus  that  she  could  be  deprived  of  the  protection  in  her  marital  rights, 
whether  of  person  or  property, (which  this  State  could  extend  to  her, 
would  be  to  use  the  legal  fiction  of  the  unity  created  b}-  the  marriage  to 
her  serious  injury,  and  to  work  great  injustice.  /, 

If  the  decree  of  the  New  York  court  is  to  have  any  validity  here,  it 
must  be  on  grounds  of  comity.  Blackinton  v.  Blackinton,  141  Mass. 
432,  436.  *  There  can  be  no  ground  of  comity  which  requires  that  we 
should  recognize  the  decree  of  a  New  York  court  annulling  a  Massa- 
chusetts marriage  between  Massachusetts  citizens,  unless  it  had  juris- 
diction of  both  the  parties  ;  nor  even  if  it  did  have  such  jurisdiction 
should  it  be  recognized  here,  unless  it  was  based  upon  grounds  which 
are  here  held  to  be  sufficient.  Suppose  two  citizens  of  Massachusetts 
are  married  here,  each  of  the  age  of  eighteen  years,  have  children,  and 
then  move  to  New  York,  where  the  husband  obtains  a  decree  of  nullity 
on  the  ground  that  persons  under  the  age  of  twenty-one  years  cannot 
lawfully  marry.  The  children  are  not  therefore  rendered  illegitimate  in 
Massachusetts,  so  that  they  cannot  here  inherit  their  father's  lands. 
Marriages  between  blacks  and  whites  are  still  prohibited  in  some  of  the 
States,  but  a  decree  in  such  a  State  annulling  a  marriage  of  this  char- 
acter valid  where  contracted  could  not  here  be  regarded.  Illustrations 
of  this  sort,  growing  out  of  the  different  laws  as  to  marriage  in  the  sev- 
eral States,  could  readily  be  multiplied.  The  right  of  a  State  to  declare 
the  present  or  future  status,  so  far  as  its  own  limits  are  concerned,  of 
persons  there  lawfully  domiciled,  cannot  be  extended  so  as  to  enable  it 
to  determine  absolutely  what  such  status  was  at  a  previous  time,  and 
while  they  were  subject  to  the  laws  of  another  State.  The  decrees  of  its 
courts  in  the  latter  respect  must  be  subject  to  revision  in  the  State  where 
rights  were  then  existing,  or  had  been  acquired.  Blackinton  v.  Black- 
inton, 141  Mass.  432. 

The  cause  alleged  and  found  by  the  New  York  court  was  not  sufficient 
to  annul  a  marriage  contracted  in  Massachusetts  between  its  citizens 
according  to  the  laws  of  this  Commonwealth.  Assuming  that  a  mar- 
riage may  here  be  declared  void  on  account  of  fraud,  and  assuming  tliat 
fraud  is  a  cause  which  will  enable  the  party  defrauded  to  maintain  a 
libel  for  the  dissolution  of  the  marriage  which  has  therebv  been  pro- 
cured, although  the  word  "  fraud,"  which  is  found  in  the  Gen.  Sts.  c.  107, 

17 


258  CUMMINGTON    V.    BELCIIERTOWN.  [CHAP.  III. 

§§  4,  5,  is  omitted  in  the  Pub.  Sts.  c.  145,  §  11,  no  fraud  was  shown  such 
as  would  enable  a  party  here  to  avoid  a  marriage.  Mrs.  Richards  was 
sane  at  the  time  of  her  marriage,  and  entirely  competent  to  make  the 
marriage  contract ;  she  had  been  insane  at  a  previous  period,  but  had 
recovered  from  such  attacks,  and  the  fact  of  such  previous  insanity  was 
concealed  from  her  husband  by  Mrs.  Richards  herself  and  her  family, 
_in  the  hope  that  marriage  would  prove  beneficial  to  her  health.  She 
lived  with  her  husband  about  a  year  and  three  months  before  symptoms 
of  insanity  again  developed  themselves.  The  possibility  or  probability 
that  she  might  again  become  insane,  growing  out  of  the  fact  that  she 
had  previously  been  so,  did  not  constitute  such  a  fraud  as  entitled  her 
husband  to  have  the  marriage  dissolved. 

There  was  no  fraud  of  such  a  character  as  to  affect  the  basis  or  the 
essential  character  of  the  contract.  Donovan  v.  Donovan,  9  Allen,  140; 
Foss  V.  Foss,  12  Allen,  26.  "  It  is  not  to  be  supposed  that  every  error 
or  mistake  into  which  a  person  may  fall  concerning  the  character  or 
qualities  of  a  wife  or  husband,  although  occasioned  by  disingenuous  or 
even  falsa  statements  or  practices,  will  afford  sufficient  reason  for 
annulling  an  executed  contract  of  marriage.  .  .  .  Therefore  no  mis- 
conception as  to  the  character,  fortune,  health,  or  temper,  however 
brought  about,  will  support  an  allegation  of  fraud  on  whicli  a  disso- 
lution of  the  marriage  contract,  when  once  executed,  can  be  obtained 
in  a  court  of  justice."  Bigelow,  C.  J.,  in  Reynolds  v.  Reynolds,  3  Allen, 
605. 

Upon  the  ground,  then,  that  the  decree  of  the  New  York  court 
attempts  to  annul  a  marriage  contracted  in  Massachusetts  between 
Massachusetts  citizens,  and  thus  affect  the  legal  status  of  the  woman 
who  has  remained  domiciled  in  Massachusetts,  and  has  never  been 
within  the  jurisdiction  of  the  New  York  court,  and  deprive  her  of  the 
rights  acquired  by  her  marriage,  and  especially  because  it  declares  the 
marriao-e  void  for  a  reason  on  account  of  which,  by  the  Massachusetts 
law,  it  cannot  be  avoided,  we  are  of  opinion  that  it  should  not  be  en- 
forced here,  and  that  no  principle  of  interstate  comity  requires  that  we 
should  give  it  effect. 

For  these  reasons,  a  majority  of  the  court  are  of  opinion  that  the 
settlement  acquired  by  Mrs.  Richards  by  her  marriage  continues,  and 
that  judgment  should  be  entered  for  the  defendant. 

Judgment  for  the  defendant} 

1  See  Linke  v.  Van  Aerde,  10  Times  L.  Rep.  426;  Roth  v.  Roth,  104  111.  35; 
Blurnentbal  v.  Tannenholz,  31  N.  J.  Eq.  194;  Johusou  v.  Cooke,  [1898]  2  Ir.  130. 
—  Ed. 


PART  n. 

REMEDIES. 


CHAPTER  IV. 

RIGHT  OF  ACTION. 


BRITISH  SOUTH  AFRICAN  CO.  v.  COMPANHIA  DE 
.       ,  MOgAMBIQUE. 

House  of   Lords.     1893. 

[Reported  [1893]  Appral  Cases,  602.] 

In  an  action  by  the  respondents  against  the  appellants  the  plaintiffs 
by  their  statement  of  claim  alleged  (inter  alia)  that  the  plaintiff  com- 
pany was  in  possession  and  occupation  of  large  tracts  of  lands  and 
mines  and  mining  rights  in  South  Africa  ;  and  that  the  defendant  com- 
pany by  its  agents  wrongfully  broke  and  entered  and  took  possession 
of  the  said  lands,  mines,  and  mining  rights,  and  ejected  the  plaintiff 
company,  its  servants,  agents,  and  tenants  therefrom  ;  and  also  took 
possession  of  some  of  the  plaintiffs'  personal  property  and  assaulted 
and  imprisoned  some  of  the  plaintiffs. 

The  statement  of  defence  in  paragraph  1  —  as  to  so  much  of  the 
statement  of  claim  as  alleged  a  title  in  the  plaintiff  company  to  the 
lands,  mines,  and  mining  rights,  and  alleged  that  the  defendants  by 
their  acrents  wrongfully  broke  and  entered  the  same,  and  claimed  a  dec- 
laration  of  title  and  an  injunction  —  whilst  denying  the  alleged  title 
and  the  alleged  wrongful  acts,  said  that  the  lands,  mines,  and  mining 
rights  were  situate  abroad,  to  wit  in  South  Africa,  and  submitted  that 
th°e  court  had  no  jurisdiction  to  adjudicate  upon  the  plaintiffs'  claim. 

In  paragraph  2  of  the  reply  the  plaintiffs  objected  that  paragraphs 
1  and  9  of  the  defence  were  bad  in  law,  and  alleged  that  paragraph  1 


260      BRITISH,    ETC.  CO.  V.   COMPANHIA    DE    MO(;'AMBIQUE.      [CHAP.  IV. 

did  not  show  that  there  was  any  court  other  than  that  in  which  this 
action  was  brought  having  jurisdiction  to  adjudicate  on  the  plaintiffs' 
said  claims  ;  and  the  plaintiffs  further  allege  that  there  was  no  compe- 
tent tribunal  having  jurisdiction  to  adjudicate  on  the  said  claims  in  the 
countrv  where  the  acts  complained  of  were  committed  ;  and  that  the 
acts  complained  of  were  illegal  according  to  the  laws  of  the  country 
where  the  same  were  committed. 

An  order  having  been  made  for  the  disposal  of  the  points  of  law  thus 
raised  by  the  pleadings,  the  Queen's  Bench  Division  (Lawrance  and 
Wright,  JJ.)  made  an" order  that  judgment  be  entered  for  the  defend- 
ants'^dismissing  the  action  so  far  as  it  claimed  a  declaration  of  title  to 
land,  and  also  so  far  as  it  claimed  damages  or  an  injunction  in  relation 
to  trespass  to  land. 

The  Court  of  Appeal  (Fry  and  Lopes,  L. JJ.  ;  Lord  Esher,  M.  R. , 
dissenting)  declared  that  Her  Majesty's  Supreme  Court  has  jurisdiction 
to  entertain  the  claim  for  damages.  The  defendants  appealed  against 
this  order.  ^ 

Lord  Herschell,  L.  C.  The  distinction  between  matters  which  are 
transitory  or  pprsonal  and  those  which  are  local  in  their  nature,  and  the 
"refusafto  exercise  jurisdiction  as  regards  the  latter  where  they  occur 
'"outside  ten-itorial  limit&>-is  not  confined  to  the  jurisprudence  of 
Ihis  country.  Story,  in  his  work  on  the  Conflict  of  Laws  (s.  551), 
after  stating  that  by  the  Roman  law  a  suit  might  in  many  cases  be 
brought,  either  where  property  was  situate  or  where  the  party  sued  had 
his  domicile,  proceeds  to  say  that  "even  in  countries  acknowledging  the 
Roman  law  it  has  become  a  very  general  principle  that  suits  w  rem 
should  be  brought  where  the  property  is  situate  ;  and  this  principle  Js 
applied  with  almost  universal  approbation  in  regard  to  immovable  prop- 
erty. The  same  rule  is  applied  to  mixed  actions,  and  to  all  suits  which 
touch  the  realty." 

In  section  553,  Story  quotes  the  following  language  of  Vattel : 
"The  defendant's  judge"  (that  is,  the  competent  judge),  says  he,  "is 
the  judge  of  the  place  where  the  defendant  has  his  settled  abode,  or 
the  judge  of  the  place  where  the  defendant  is  when  any  sudden  diffi- 
culty arises,  provided  it  does  not  relate  to  an  estate  in  land,  or  to  a 
right  annexed  lo  such  an  estate.  In  such  a  case,  as  property  of  this 
kind  is  to  be  held  according  to  the  laws  of  the  country  where  it  is  sit- 
uated, and  as  the  right  of  granting  it  is  vested  in  the  ruler  of  the  coun- 
try, controversies  relating  to  such  property  can  only  be  decided  in  the 
State  in  which  it  depends."  He  adds,  in  the  next  section  :  "It  will  be 
perceived  th.it  in  many  respects  the  doctrine  here  laid  down  coincides 
with  that  of  the  common  law.  It  has  been  already  stated  that  by  the 
common  law,  personal  actions,  being  transitory,  may  be  brought  in  any 
place  where  the  party  defendant  can  be  found  ;  that  real  actions  must  be 
brought  in  the  forum  ret  sitce  ;  and  that  mixed  actions  are  properly  re- 
1  The  stuternent  of  facts  has  been  abridged,  and  arguments  and  part  of  the  opinion 
omitted. — Ed. 


CHAP.  lY.]       BRITISH,    ETC.    CO.   V.    COMPANHIA    DE    MOZAMBIQUE.       261 

ferable  to  the  same  jurisdiction.  Among  the  latter  are  actions  for  tres- 
passes and  injuries  to  real  property  which  are  deemed  local ;  so  that 
the}'  will  not  lie  elsewhere  than  in  the  place  rei  sitce." 

The  doctrine  laid  down  by  foreign  jurists,  which  is  said  by  Story  to 
coincide  in  many  respects  with  that  of  our  common  law,  obviously  had 
relation  to  the  question  of  jurisdiction,  and  not  to  any  technical  rules 
determining  in  what  part  of  a  country  a  cause  was  to  be  tried.  8t<jry 
was  indeed  regarded  by  one  of  the  learned  judges  in  the  court  below. 
(Lopes,  L.  J.,  [1892]  2  Q.  B.  420)  as  sanctioning  the  view  that  our 
rules  with  regard  to  venue  in  the  case  of  local  actions  offered  the  only 
obstacle  to  the  exercise  of  jurisdiction  in  actions  of  trespass  to  real 
property.  The  passage  relied  on  is  as  follows  (s.  554)  :  "  Lord  Mans- 
field and  Lord  Chief  Justice  E^-re  held  at  one  time  a  ditferent  doctrine, 
and  allowed  suits  to  be  maintained  in  England  for  injuries  done  by 
pulling  down  houses  in  foreign  unsettled  regions,  namely,  in  the  desert 
coasts  of  Nova  Scotia  and  Labrador.  But  this  doctrine  has  been 
since  overruled  as  untenable  according  to  the  actual  jurisprudence  of 
England,  however  maintainable  it  might  be  upon  general  principles  of 
international  law,  if  the  suit  were  for  personal  damages  only." 

By  the  words  "untenable  according  to  tlie  actual  jurisprudence  of 
England,"  I  do  not  think  Story  was  referring  to  the  rule  which  in  this 
country  regulated  the  place  of  trial  in  the  case  of  local  actions.  Nor 
am  I  satisfied  that  either  Lord  Mansfield  or  Story  would  have  regarded 
an  action  of  trespass  to  land  as  a  suit  for  personal  damages  only,  if  th.e 
title  to  the  land  were  at  issue  ;  and  in  order  to  determine  whether  there 
was  a  right  to  damages  it  was  necessary  for  the  court  to  adjudicate 
upon  the  conflicting  claims  of  the  parties  to  the  real  estate.  In  both 
the  cases  before  Lord  Mansfield,  as  I  understand  thetn,  no  question  of 
title  to  real  property  was  in  issue.  The  sole  controversy  was,  whether 
the  British  oflScers  sued  were,  under  the  circumstances,  justified  in  in- 
terfering with  the  plaintiffs  in  their  enjoyment  of  it. 

The  question  what  jurisdiction  can  be  exercised  by  the  courts  of  anjT 
country  according  to  its  municipal  law  cannot,  I  think,  be.p,onc]nsiv&ly 
determined  by  a  reference  to  principles  of  international  law.  No  nation 
can  execute  its  ludgmeTTts,  whether  npiainst  persons  or  movables  or  reid. 
property,  in  the  country  of  another.  On  the  other  hand,  if  the  courts. 
of  a  country  werejo  claim,  as  ngginst.  a  person  resident  there,  jurisdic- 

"3ionJo_adjudicate  upon  the  title  to  land  in  a  foreign  _comitAvar»fUo 
enforce  its  adjudication _m_gg2 
any  ruie'"oflnternationallaw  would  bejviolated.      But  in  considering 

""wFat  jurisdiction  6ur~courts|_EOSsess^  and Jiave   claimed  to  exercise  , 

IrTlrelation  to  matters  arising  out  of  the  country,  the  principles  which.. 

'^ave  found  general  acceptance  amongst  civilized  nations  as  defining 
the  limits  of  jurisdietio«-*H»e  of  great  weight.""  ' 

JJusra*^  admitted-Ju-the_present_cjse,_on  b_ehal,f  of  the  respondents^ 
that  the  court  could  not  make  a  declaration  of  title,  or  p;rant  an  in.iunc-  _ 
TT^r.  ir^  vnofvQin  tvpa'^^^^ps^  thp  rpgpnntlPTits  havinp-  in  relation  to  these 


262      BRITISH,   ETC.    CO.   V.  COMPANHIA   DE    MOZAMBIQUE.       [CHAP.  IV. 

matters  abandoned  their  appeal  in  the  court  below.  But  it  is  said  that 
the  court  ma}'  inquire  into  the  title,  and,  if  the  plaintiffs  and  not  the  de- 
fendants are  found  to  have  the  better  title,  may  award  damages  for  the 
trespass  committed.  My  Lords,  I  find  it  difficult  to  see  why  this  dis- 
tinction should  be  drawn.  It  is  said,  because  the  courts  have  no 
power  to  enforce  their  judgment  b^-  any  dealing  with  the  land  itself, 
where  it  is  outside  their  territorial  jurisdiction.  But  if  the}'  can 
determine  the  title  to  it  and  compel  the  payment  of  damages  founded 
upon  such  determination,  why  should  not  they  equally  proceed  in  per- 
sonam against  a  person  who,  in  spite  of  that  determination,  insists  on 
disturbing  one  who  has  been  found  by  the  court  to  be  the  owner  of  the 
property  ? 

It  is  argued  that  if  an  action  of  trespass  cannot  be  maintained  in  this 
country  where  the  land  is  situate  abroad,  a  wrong-doer  by  coming  to 
this  country  might  leave  the  person  wronged  without  any  remedy.  It 
might  be  a  sufficient  answer  to  this  argument  to  say  that  this  is  a  state 
of  things  which  has  undoubtedly  existed  for  centuries  without  any  evi- 
dence of  serious  mischief  or  any  intervention  of  the  legislature  ;  for 
even  if  the  Judicature  Rules  have  the  effect  contended  for,  I  do  not 
think  it  can  be  denied  that  this  was  a  result  neither  foreseen  nor  in- 
tended. But  there  appear  to  me,  I  confess,  to  be  solid  reasons  why 
the  courts  of  this  country  should,  in  common  with  those  of  most  other 
nations,  have  refused  to  adjudicate  upon  claims  of  title  to  foreign  land 
in  proceedings  founded  on  an  alleged  invasion  of  the  proprietary  rights 
attached  to  it,  and  to  award  damages  founded  on  that  adjudication. 

The  inconveniences  which  might  arise  from  such  a  course  are 
obvious,  and  it  is  by  no  means  clear  to  my  mind  that  if  the  couits 
were  to  exercise  jurisdiction  in  such  cases  the  ends  of  justice  would  in 
the  long  run,  and  looking  at  the  matter  broadly,  be  promoted.  Sup- 
posing a  foreigner  to  sue  in  this  country  for  trespass  to  his  lands  sit- 
uate abroad,  and  for  taking  possession  of  and  expelling  him  from  them, 
what  is  to  be  the  measure  of  damages?  There  being  no  legal  process 
here  by  which  he  could  obtain  possession  of  the  lands,  the  plaintiff 
might,  I  suppose,  in  certain  circumstances,  obtain  damages  equal  in 
amount  to  their  value.  But  what  would  there  be  to  prevent  his  leav- 
ing this  country  after  obtaining  these  damages  and  re-[)ossessing  him- 
self of  the  lands?  What  reraody  would  the  defendant  have  in  such  a 
case  where  the  lands  are  in  an  unsettled  country,  with  no  laws  or  regu- 
lar system  of  government,  but  where,  to  use  a  familiar  expression,  the 
only  right  is  might?  Such  an  occurrence  is  not  an  impossil)le,  or  even 
an  improbable,  hypothesis.  It  is  quite  true  that  in  the  exercise  of  the  un- 
doul)ted  jurisdiction  of  the  courts  it  may  become  necessary  incidentally 
to  investigate  and  determine  the  title  t^o  foreign  lands;  but  it  docs  not 
seem  to  me  to  follow  that  because  such  a  question  may  incidentally 
arise  and  fall  to  be  adjudicated  upon,  the  courts  possess,  or  that  it  is 
expedient  that  they  shoidd  exercise,  jurisdiction  to  try  an  action 
founded  on  a  disputed  claim  of  title  to  foreign  lands. 


CHAP.  IV.]  GARDNER  V.   THOMAS.  263 

For  the  reasons  with  which  I  have  troubled  your  Lordships  at  some 
leiiigth,  I  think  the  judgment  appealed  from  should  be  reversed  and  the 
judgment  of  the  Divisional  Court  restored,  and  that  the  respondents 
should  pay  the  costs  here  and  in  the  court  below,  and  I  move  your 
Lordships  accordingly. i 


ANONYMOUS. 

General  Court  of  Massachusetts  Bay  Colony.    1648. 

[Reported  2  Massachusetts  Colonial  Records,  255.] 

A  QUESTION  arising  about  the  interpretation  of  a  clause  in  a  law, 
made  42,  about  tryall  of  actions,  &c.,  viz.  whether  a  personall  action,  as 
for  battery,  &c.  ariseing  upon  an  act  commited  in  England,  &  the 
parties  come  both  into  this  iurisdiction,  whether  by  law  we  are  barred 
from  trying  the  action  of  battery  in  this  iurisdiction,  the  Courte  hath 
voted  that  we  are  not  barred  by  that  lawe,  because  a  personall  action 
followeth  the  person,  &  from  the  person  onely  the  cause  of  the  action 
ariseth. 


GARDNER    v.    THOMAS. 
Supreme  Court  of  New  York. 

[Reported  14  Johnson's  Reports,  134.] 

Yates,  J.,  delivered  the  opinion  of  the  court.^  This  cause  comes  up 
on  certiorari  to  the  Justices'  Court  in  New  York.  The  action  was  for 
an  assault  and  battery.  The  defendant  pleaded  that  the  assault  and 
battery  (if  any)  was  committed  on  board  of  a  British  vessel  upon  the 
high  seas,  and  that  the  plaintiff  and  defendant  were  both  British  sub- 
jects, one  the  master,  and  the  other  a  sailor,  on  board  the  same  vessel. 
To  this  plea  there  was  a  demurrer  and  joinder,  on  which  judgment  was 
given  for  the  plaintiff  below. 

The  question  presented  b}-  this  case  is,  whether  this  court  will  take 
cognizance  of  a  tort  committed  on  the  high  seas,  on  board  of  a  foreign 
vessel,  both  the  parties  being  subjects  or  citizens  of  the  country'  to 
which  the  vessel  belongs. 

1  Lords  Halsbury,  Macnaghten,  and  Morris  concurred. 

Ace.  (in  addition  to  the  authorities  cited  in  the  dissenting  opinion  in  Little  v. 
Ry.,  infra),  Howard  v.  Ingersoll,  23  Ala.  673.  See  Laird  v.  R.  R.,  62  N.  H.  254; 
Tyson  v.   McGuiness,   25  Wis.  656.  —  Ed. 

'•^  The  opinion  only  is  given  ;  it  sufficiently  states  the  case.  —  Ed. 


264  GAEDNER   V.   THOMAS.  [CHAP.  IV. 

It  rnust  be  conceded  that  the  law  of  nations  gives  complete  and  entire 
jurisdiction  to  the  courts  of  the  country  to  which  the  vessel  belongs, 
but  not  exclusively.  It  is  exclusive  only  as  it  respects  the  public  injury, 
but  concurrent  with  the  tribunals  of  other  nations,  as  to  the  private 
remedv.  There  may  be  cases,  however,  where  the  refusal  to  take  cog- 
nizance of  causes  for  such  torts  may  be  justified  by  the  manifest  public 
inconvenience  and  injur}'  which  it  would  create  to  the  community  of 
both  nations ;  and  the  present  is  such  a  case. 

In  Mostyn  v.  Fabrigas  (Cowp.  176),  Lord  Mansfield,  in  his  opin- 
ion there  stated,  is  sufficiently  explicit  as  to  the  doctrine,  that  for  an 
Injury  committed  on  the  high  seas,  circumstanced  like  the  one  now 
before  us,  an  action  may  be  sustained  in  the  court  of  King's  Bench  ; 
he  onl}'  appears  to  doubt  whether  an  action  may  be  maintained  in 
England  for  an  injur}-  in  consequence  of  two  persons  fighting  in  France, 
when  botli  are  within  the  jurisdiction  of  the  court.  The  present  action, 
however,  is  for  an  injur}-  on  tlie  high  seas  ;  and,  of  course,  witliout  the 
actual  or  exclusive  territory  of  any  nation. 

The  objection  to  the  jurisdiction,  because  it  must  be  laid  in  the 
declaration  to  be  against  the  peace  of  the  people,  is  not  sufficient,  for 
that  is  mere  matter  of  form,  and  not  traversable.  In  Rafael  v.  Verelst, 
2  Black.  Rep.  1058,  De  Grey,  chief  justice,  says,  that  personal  injuries 
are  of  a  transitory  nature,  et  sequuntur  forum  7-ei  ;  and  though,  in  all 
declarations,  it  is  laid  contra  pacern,  yet  that  is  only  matter  of  form, 
and  hot  traversable. 

It  is  evidentj^thenj^ that  our  courts_may  take  cognizance ^f_torts 
eommitted^oiTthe  high  seas,  on  board  oX_a.  foreign  vessel,  where  both 
parties  areToreigners  ;  but  Fam  inclined  to  think  it  must,  on  principles 
ofpolicy.  often  rpst  in  the  sound  discretion  of  the  court  to  afford  juris- 
diction  or  not,  according  to  the  circunQstancea_af-thc  case. — To  say  that 


Ifcan  be  claimed  in  all  cases,  as  matter  of  right,  would  introduce  a 
principle  which  might,  often  times,  be  attended  with  manifest  disadvan- 
tage, and  serious  injury  to  our  own  citizens  abroad,  as  well  as  to 
foreigners  here.  Mariners  might  so  annoy  the  master  of  a  vessel  as  to 
break  up  the  voyage,  and  thus  produce  great  distress  and  ruin  to  tlie 
owners.  The  facts  in  this  case  sufficiently  show  the  impropriety  of 
extending  jurisdiction,  because  it  is  a  suit  brought  by  one  of  the 
mariners  against  the  master,  both  foreigners,  for  a  personal  injury  sus- 
tained on  board  of  a  foreign  vessel,  on  the  high  seas,  and  lying  in  port 
when  the  action  was  commenced,  and,  for  aught  that  appears  in  the 
ease,  intending  to  return  to  their  own  country,  without  delay,  other 
than  what  the  nature  of  the  voyage  required.  Under  such  circum- 
stances, it  is  manifest  that  correct  policy  ought  to  have  induced  tiie 
court  below  to  have  refused  jurisdiction,  so  as  to  prevent  the  serious 
consequences  which  must  result  fi'om  the  introduction  of  a  system,  with 
regard  to  foreign  mariners  and  vessels,  destructive  to  commerce;  since 
it  must  materially  affect  the  necessary  intercourse  lietweon  nations,  by 
which  alone  it  can  be  maintained.     The  plaintiff,  therefore,  ought  to 


CHAP.  IV.]  ROBERTS   V.    KNIGHTS.  265 

have  been  left  to  seek  redress  in  the  courts  of  his  own  countr}'  on  his 
return.  The  judgment,  for  these  reasons,  may  be  deemed  to  be  im- 
providently  rendered  in  the  court  below,  and  is,  therefore,  reversed. 

Judgment  of  reversal,^ 


ROBERTS   V.   KNIGHTS. 
Supreme  Judicial  Court  of  Massachusetts.    1863. 

{Reported  7  Allen,  449.] 

Contract  brought  in  the  Police  Court  of  Boston  by  the  plaintiff,  who 
is  a  British  subject,  against  the  master  of  a  British  vessel,  who  is  also  a 
British  subject.  The  defendant  objected,  in  the  Police  Court,  that  the 
court  had  no  jurisdiction,  and  a  hearing  was  thereupon  had  upon  all 
the  questions  involved,  and  the  case  was  dismissed,  and  the  plaintiff 
appealed  to  the  Superior  Court.^ 

Chapman,  J.  The  question  now  presented  is,  whether  our  courts  are 
bound  to  take  jurisdiction  of  this  case,  both  the  parties  being  aliens,  and 
having  only  a  transient  residence  within  the  Commonwealth. 

The  Gen.  Sts.  do  not  settle  the  question.     Not  much  light  is  thrown, 
upon  it  by  c.  123,  §  1,  cited  by  the  plaintiff's  counsel,  which  provides 
that,  if  neither  party  lives  in  the  State,  a  transitory  action  may  be 
brought  in  any  county.     Nor  have  we  been  able  to  find  any  provisions 
in  any  of  our  treaties  with  Great  Britain  which  give  us  any  aid.     The 

1  See  Otis  v.  Wakeraan,  1  Hill,  604.  In  Smith  v.  Crocker,  14  App.  Div.  245  (1897), 
O'Brien,  J.,  said:  "  The  contention  that,  because  both  the  plaintiff  and  the  defendant 
Crocker  are  non-residents,  the  trial  court  should  have  refused  to  entertain  jurisdiction 
of  the  cause,  we  regard  as  equally  untenable.  We  are  referred  to  a  number  of  cases 
(Ferguson  v.  Neilson,  33  N.  Y.  St.  Repr.  814  ;  Robinson  v.  Oceanic  Steam  Nav.  Co., 
112  N.  Y.  315)  in  which  it  was  held  that  the  courts  of  this  State  will  not  retain  juris- 
diction of  and  determine  an  action  for  tort  between  parties  residing  in  other  States  on 
causes  of  action  arising  out  of  the  State,  as  a  matter  of  public  policy,  unless  special 
reasons  are  shown  to  exist  which  make  it  necessary  or  proper  so  to  do.  An  examina- 
tion of  the  cases  cited,  as  well  as  of  all  to  which  our  attention  has  been  called  where 
that  rule  has  been  applied,  were  actions  in  tort,  and  not  actions  upon  a  contract.  Our 
courts  have  never  refused  to  entertain  jurisdiction  of  a  cause  of  action  arising  upon 
contract.  In  the  case  of  Davidsburgh  v.  The  Knickerbocker  Life  Ins.  Co.  (90  N.  Y. 
526),  it  was  held  that  as  the  City  Court  of  Brooklyn  was  a  local  court,  of  limited  juris- 
diction, unless  the  defendants  came  within  the  classes  over  which  the  statute  had  con- 
ferred jurisdiction  upon  this  court,  the  parties  could  not  confer  jurisdiction  by  consent. 
This  case  is  in  no  respect  an  authority  for  the  rule  contended  for  by  the  appellants. 
Whether,  therefore,  this  contract  was  made  in  California  or  New  York  —  upon  which 
question  mucli  in  favor  of  the  view  that  it  was  a  New  York  contract  might  be  said  — 
we  do  not  think  it  is  necessary  to  determine  ;  as  it  appears  that  the  action  was  one 
upon  contract,  the  court  committed  no  error  in  entertainiiig  jurisdiction  of  the 
cause."  —  Ed. 

2  Only  so  much  of  the  case  as  involves  this  question  is  given.  —  Ed. 


266  EOBEKTS   V.    KNIGHTS.  [CHAP.  IV. 

question  whether  the  courts  of  a  country  ought  to  take  jurisdiction  of 
xitigatigrr  between  ^h^ns,  temporarily  residing  within  its  limits,  jj  Pri- 
marily one  of  internationallaw_. 

Vattel,  h.  2,  c.  8,  §  103,  ^ays  that  by  the  law  of  nations  disputes  that 
may  arise  between  strangers,  or  between  a  stranger  and  a  citizen,  ought 
to  be  terminated  by  the  judge  of  the  place,  and  also  by  the  laws  of  the 
place.  In  2  Kent's  Com.  (6th  ed.)  64,  this  authority  is  cited,  and  the 
law  is  stated  to  be  that  if  strangers  are  involved  in  disputes  with  our 
citizens,  or  with  each  other,  they  are  amenable  to  the  ordinary  tribunals 
of  the  country.  No  distinction  is  made  between  transient  and  perma- 
nent residents. 

In  1650  our  colonial  legislature  passed  an  act,  reciting  that  "  whereas 
oftentimes  it  comes  to  pass  that  strangers  coming  amongst  us  have  sud- 
den occasions  to  try  actions  of  several  natures  in  our  courts  of  justice," 
the  right  is  therefore  given  to  them.  3  Col.  Rec.  202.  See  also  Anc. 
Chart.  91.  In  1672  another  act  was  passed,  confirming  and  regulating 
the  right.  4  Col.  Rec.  part  2,  532.  See  also  Anc.  Chart.  192.  These 
acts  make  no  exce[)tion  of  cases  of  transient  residence,  and  they 
established  our  municipal  law  at  a  very  early  date. 

In  Barrell  v.  Benjamin,  15  JNIass.  354,  it  was  objected  that  the  de- 
fendant, whose  domicile  was  in  Demerara,  beinji  transientl}'  here,  M'as 
not  liable  to  be  sued  in  our  courts  by  the  plaintiff,  whose  domicile  was 
in  Connecticut,  and  who  was  also  transiently  here.  The  precise  ques- 
tion which  arises  in  the  present  case  was  not  before  the  court,  but  the 
reasoning  of  Parker,  C.  J.,  goes  to  sustain  the  marginal  note  of  the  case, 
which  is  as  follows  :  "It  seems  that  one  foreigner  may  sue  another  who 
is  transiently  within  the  limits  of  this  State,  upon  a  contract  made  be- 
tween them  in  a  foreign  country." 

In  Judd  V.  Lawrence,  1  Cush.  531,  it  was  held  that  an  alien  resident 
within  the  Commonwealth  is  entitled  to  the  benefit  of  the  insolvent  laws. 
Since  St.  1852,  c.  29,  aliens  have  been  able  to  take,  hold,  and  transmit 
real  estate.  It  seems,  tlierefore,  to  be  the  policy  of  modern  times  to 
enlarge  rather  than  diminish  the  rights  and  privileges  of  aliens. 

The  courts  of  the  United  States  have  not  jurisdiction  where  both  par- 
ties are  aliens,  because  this  is  not  one  of  the  enumerated  cases  in  which 
jurisdiction  is  given  to  them.  Barrell  v.  Benjamin,  ubi  supra  ;  Turner 
V.  Bank  of  North  America,  4  Dall.  11  ;  Hodgson  v.  Bowerbank,  5  Cranch, 
303. 

The  argument  ab  inconvenienti,  which  is  nrgcd  on  behalf  of  the  de- 
fendant, has  much  force.  It  is  extremely  inconvenient  to  one  who  is 
temporarily  in  a  foreign  country  to  be  sued  by  a  fellow-countryman  in 
its  courts.  But  't  is  met  by  an  argument  of  equal  force  on  the  other 
side.  If  the  plaintiff  had  no  such  remedy,  he  would  often  be  subjected 
to  great  hardships.  OjLlhc_whole,  it  is  consonant  to  natural  right  and 
justice  that  the  courts  of  every  ^ivllizcd"^uiitry  shodd  be  open  to  hear 
the'causesTof  all  parties  who  may  be  resident  for  the  time  being  within 
its  limits. 


CHAP.  IV.]  BTJRDICK   V.   FREEMAN.  267 

The  defendant  relies  upon  a  clause  in  the  Merchants'  Shipping  Act 
(17  &  18  Vict.  c.  104),  which  provides  that,  in  a  contract  like  that  of 
the  plaintiff,  no  seaman  shall  sue  for  wages  in  any  court  abroad,  except 
in  cases  of  discharge  or  of  danger  to  life. 

But  this  act  cannot  affect  the  question  of  jurisdiction,  which,  on  the 
motion  to  dismiss,  is  the  only  question  to  be  considered.^ 


BURDICK   V.   FREEMAN. 
Court  of  Appeals,  New  York.     1890. 

[Reported  120  New  York,  420.] 

FoLLETT,  C.  J.  This  action,  begun  February  19,  1895,  is  for  crim- 
inal conversation.^  .  .  .  After  the  court  had  concluded  its  charge,  the 
defendant  asked  that  the  jury  be  instructed  "that  the  plaintiff  cannot 
maintain  this  action  in  the  courts  of  this  State,  and  that  this  court  has 
no  jurisdiction  of  this  case."  This  request  was  refused,  and  the  defend- 
ant excepted.  This  action  was  for  the  recovery  of  damages  for  a  per- 
sonal injury.  Code  Civil  Proc,  §  3343,  subd.  9.  The  courts  of  this 
State  may,  in^ their  discretion,  entertain  jurisdictiom  of  such  an  action 
befween  citizens  of  anotheF^tate  actually  "domiciled  therein  when  the 
action  was  "begun  and  tried,  though  tlie  Injur}'' was"^comraitted  in  the 
Staie  oTOielr  resIdeWe  anit  dcTi^^  "Gardner 'o.  Thomas7T:4  Johns. 
134  ;  Johnson  v.  Dalton,  1  Cow.  543  ;  Dewitt  v.  Buchanan,  54  Barb. 
31 ;  Mclvor  v.  McCabe,  26  How.  257 ;  Newman  v.  Goddard,  3  Hun,  70  ; 
Mostyn  v.  Fabrigas,  2  Smith,  Lead.  Cas.  (9th  ed.),  916  ;  Story,  Conf, 
Laws",  §  542;  Whart.  Conf.  Laws,  §§  705,  707,  743;  4  Phillim.  Int. 
Law,  701.  The  judgments  in  Molony  v.  Dows,  8  Abb.  Pr.  316,  and 
Latourette  v.  Clark,  30  How.  Pr.  242,  in  so  far  as  they  hold  otherwise, 
must  be  regarded  as  overruled.  The  defendant  had  not  left  the  State 
of  his  residence,  nor  had  he  removed  his  property  therefrom,  when  this 
action  was  begun,  and  we  find  no  sufficient  reason  for  prosecuting  it  in 
the  courts  of  this  State.  But  this  action  had  been  pending  for  a  j-ear, 
and  the  question  as  to  whether  the  court  should  entertain  jurisdiction 
had  not  been  raised  by  answer,  by  special  motion,  or  during  the  trial; 
and  we  think  that,  while  the  Supreme  Court  might,  in  the  exercise  of  its 
discretion,  have  refused  to  entertain  the  action,  or  dismissed  it  on  its 
own  motion,  yet  the  defendant,  not  being  entitled  to  a  dismissal  as  a 
matter  of  right,  ought  not  to  be  permitted  to  lie  by  until  the  close  of  the 
trial,  when  its  probable  result  could  be  inferred,  and  then  successfully 
invoke  the  exercise  of  the  discretion  of  the  court  in  his  favor.  The 
judgment  should  be  affirmed,  with  costs.  All  concur,  except  Bradley 
and  Haight,  JJ.,  not  sitting. 

1  Ace.  Cofrode  v.  Gartner,  79  Mich.  332,  44  N.  W.  623.  —  Ed. 

2  Part  of  the  opinion  is  omitted.  —  Ed. 


263  DE  LA  VEGA  V.   VIANNA.  [CHAP.  V, 


CHAPTER  V. 

PROCEDURE. 


DE  LA  VEGA   v.   VIANNA. 

King's  Bench.     1830. 

[Reported  1  Bariieivall  d;  Adolphus,  284.] 

Lord  Tenterden,  C.  J.-*  This  was  an  application  to  discharge  the 
defendant,  who  had  been  arrested  upon  mesne  process,  out  of  custody 
on  filing  common  bail.  The  plaintiff  and  defendant  were  both  foreign- 
ers ;  the  debt  was  contracted  in  Portugal,  and  it  appears  that,  by  the  law 
of  that  country,  the  defendant  would  not  have  been  liable  to  arrest.  It  is 
contended  on  the  authority  of  Melan  v.  The  Duke  de  Fitzjames,  1  B.  &  P. 
139,  that  he  is  entitled  to  the  relief  now  sought.  We  are,  however,  of 
opinion,  that  he  is  not.  In  the  case  just  mentioned,  the  distinction  taken 
by  Mr.  Justice  Heath,  who  differed  from  the  other  judges,  was,  that  in 
construing  contracts  the  law  of  the  countr}-  in  which  they  are  made 
must  govern,  but  that  the  remedy  upon  them  must  be  pursued  b}'  such 
means  as  the  law  points  out  where  the  parties  reside.  This  doctrine  is 
said  to  correspond  with  the  opinions  of  Huber  and  Voet.  I  have  not 
had  an  opportunity  of  looking  into  those  authorities,  but  we  think,  on 
consideration  of  the  present  case,  that  the  distinction  laid  down  by  Mr. 
Justice  Heath  ought  to  prevail.  A  person  suing  in  this  country  must 
take  the  law  as  he  finds  it ;  he  cannot,  by  virtue  of  an}'  regulation  in 
his  own  country,  enjo}'  greater  advantages  than  other  suitors  here,  and 
he  ought  not  therefore  to  be  deprived  of  any  superior  advantage  which 
the  law  of  this  countrj'  may  confer.  He  is  to  have  the  same  rights 
which  all  the  subjects  of  this  kingdom  are  entitled  to.  The  rule  must 
be  discharged.  Rule  discharged.^ 

1  The  opinion  only  is  given  ;  it  sufficiently  states  the  case.  —  Ed. 

2  Ace.  Inilay  v.  EUefsen,  2  East,  453  ;  Atwate'r  v.  Townsend,  4  Conn.  47  ;  Smith  v. 
Spinolla,  2  Johns.  198;  Anon.  (Austria,  12  Dec.  1876),  8  Chinet,  176.  —Ed. 


CHAP.  Y.J  BULLOCK   V.    CAIRO.  269 


BULLOCK   V.   CAIRD. 

Queen's  Bench.     1875. 

[Reported  Law  Reports,  10  Queen's  Bench,  276.] 

Action  by  the  plaintiffs  against  the  defendant  for  the  breach  of  an 
agree m e n t  to  build  a  ship. 

The  material  part  of  the  agreement,  which  was  set  out  in  the  declara- 
tion, was  as  follows  :  — 

"Glasgow,  July  15th,  1874.  Messrs.  Caird  &  Co.,  shipbuilders, 
Greenock,  agree  to  build  for  Messrs.  James  and  George  Bullock  &  Co., 
London,  who  agree  to  accept  an  iron  sailing  ship  of  the  following  dimen- 
sions, &c.'"  Throughout  the  agreement  the  parties  were  mentioned  as 
Caird  &  Co.  and  Bullock  &  Co. 

Plea,  that  there  was  a  trading  partnership  or  firm  domiciled  and 
carrying  on  business  in  Scotland  by  the  name  of  Caird  &  Co.,  and  the 
alleged  agreement  was  an  agreement  made  in  Scotland  by  the  plaintiffs 
with  the  firm,  and  was  to  be  performed  wholly  in  Scotland  without  the 
jurisdiction  of  the  English  courts  and  within  the  jurisdiction  of  the 
Scotch  courts,  and  by  the  law  of  Scotland  the  firm  was  and  is  a  sepa- 
rate and  distinct  person  from  any  or  ihe  whole  of  the  individual  members 
of  whom  it  consists  and  of  whom  the  defendant  was  and  is  one,  and  the 
firm,  by  the  law  of  Scotland,  is  capable  of  maintaining  the  relation  of 
debtor  and  creditor  separate  and  distinct  from  the  obligation  of  the 
partners  as  individuals,  and  can  hold  property-,  and  has  the  capacity  of 
suing  and  being  sued  as  such  separate  person  by  its  name  of  Caird  & 
Co.,  and  the  alleged  agreement  was  made  by  the  firm  as  such  separate 
person  and  not  jointly  and  severally  hy  the  individual  members  thereof; 
that  at  the  date  of  the  agreements  the  firm  consisted  of  certain  individ- 
uals, namely,  the  defendant  James  Tennant  Caird  and  Patrick  Tennant 
Caird,  and  has  always  since  consisted  and  still  consists  of  the  same 
members,  and  the  firm  and  each  of  its  individual  members  then  was  and 
alwavs  since  has  been  and  still  is  domiciled  and  carr3'ing  on  business 
in  Scotland,  and  within  and  subject  to  the  jurisdiction  of  the  Scotch 
courts  and  possessed  of  sufficient  property  and  funds,  within  and  sub- 
ject to  the  jurisdiction  to  answer  in  full  the  claim  of  the  plaintiffs  ;  that 
by  the  law  of  Scotland  the  defendant  became  and  was,  as  a  partner  of 
the  firm  of  Caird  &  Co.,  on  the  making  of  the  agreement,  liable  to  the 
plaintiffs  for  the  satisfaction  of  any  judgment  which  might  be  obtained 
against  the  firm  or  the  whole  of  the  individual  partners  thereof  jointly 
for  an}'  breaches  of  the  agreement ;  and  save  as  aforesaid  no  liability  by 
the  law  of  Scotland  attached  or  attaches  to  the  defendant  in  respect  of 
the  agreement ;  that  by  the  law  of  Scotland  it  is  a  condition  precedent 
to  any  individual  liability  attaching  to  the  defendant  or  any  individual 
members  of  the  firm  in  I'espect  of  the  agreements  that  the  firm  as  such 
person  as  aforesaid  or  the  whole  individual   partners  thereof  jointly 


270  LE   BOY   V.    BEARD.  [CHAP.  V. 

should  first  have  been  sued,  and  that  judgment  should  have  been  re' 
covered  against  the  firm  or  the  whole  of  the  said  partners  jointly,  and 
that  the  plaintifts  have  not  sued  the  firm  of  Caird  &  Co.  nor  the  whole 
of  the  partners  jointl}',  nor  recovered  judgment  against  it  or  them. 

Demurrer  to  the  plea  and  joinder.^ 

Blackburn,  J.  It  is  quite  clear  that  the  firm  of  Caird  &  Co.  are  not 
a  body  corporate.  The  plea  alleges  that  the  firm,  or  the  whole  indi- 
vidual partners  thereof  jointly,  should  first  have  been  sued.  If  one  of 
the  members  of  the  firm  was  not  joined  it  might  be  a  bar  to  an  action 
in  Scotland,  but  it  could  onl^-  be  pleaded  in  abatement  in  an  action  in 
England.  I  think  all  the  matters  stated  in  the  plea  are  mere  matter  of 
procedure,  and  that  the  plea  is  bad. 

Mellor  and  Field,  JJ.,  concurred. 

Judgment  for  the  plaintiff's.^ 


LE   ROY  V.   BEARD. 

Supreme  Court  of  the  United  States.     1849. 
[Reported  8  Howard's  Reports,  451.] 

Woodbury,  J.^  This  was  an  action  of  assumpsit  for  money  had  and 
received;  and  also  counting  speciall}-,  that,  on  the  17th  of  November, 
1836,  the  original  defendant,  Le  Roy,  in  consideration  of  $1,800  then 
paid  to  him  b}'  the  original  plaintiff,  Beard,  caused  to  be  made  to  the 
latter,  at  Milwaukie,  Wisconsin,  a  conve3-ance,  signed  by  Le  Roy  and 
his  wife,  Charlotte.  This  conveyance  was  of  a  certain  lot  of  land 
situated  in  Milwaukie,  and  contained  covenants  that  they  were  seized 
in  fee  of  the  lot,  and  had  good  right  to  convey  the  same.  Whereas  it 
was  averred,  that,  in  truth,  they  were  not  so  seized,  nor  authorized  to 
convey  the  premises,  and  that  thejeby  Le  R03'  became  liable  to  repay 
the  $1,800. 

Under  several  instructions  given  by  the  Circuit  Court  for  the  South- 
ern District  of  New  York,  where  the  suit  was  instituted,  the  jur}'  found 
a  verdict  for  the  original  plaintiff",  on  which  judgment  was  rendered  in 
his  favor,  and  which  the  defendant  now  seeks  to  reverse  by  writ  of 
error.     Among  those  instructions,   which   were   excepted   to   by   the 

1  Arguments  of  counsel  are  omitted.  —  Ed. 

2  Ace.  Taft  V.  Ward,  106  Mass.  518  ;  Henry  Briggs  Sons  &  Co.  v.  Niven  (Antwerp, 
22  July,  1893),  21  Clunet,  1080.  See  Carnegie  ».  Morrison,  2  Met.  381.  So  of  the 
question  whether  an  assignee  of  a  chose  in  action  may  sue  in  his  own  name.  Roosa  y. 
Crist,  17  111.  450  ;  Foss  v.  Nutting,  14  Gray,  484  ;  Lodge  v.  Phelps,  2  Cai.  Cas.  321  ; 
see  Levyu.  Levy,  78  Pa.  507.  Whether  an  assignee  for  creditors  may  sue  in  his  own 
name.  Glenn  v.  Marbury,  145  U.  S.  499  ;  Osborn  v.  First  Nat.  Bank,  175  Pa.  494, 
34  All.  858.  So  of  suit  by  a  married  woman  in  her  own  name.  Stoneman  v.  Eria 
Ry.,  52   N.  Y.   429.  —  Ed. 

3  Part  of  the  opinion  only  is  given.  —  Ed. 


CHAP,  v.]  HAMILTON   V.    SCHOENBERGEK.  271 

defendant,  and  are  at  this  time  to  be  considered,  was,  first,  that  "  the 
action  of  assumpsit  is  properly  brought  in  this  court,  upon  the  promises 
of  the  defendant  contained  in  the  deed,  if  any  promises  are  made 
therein  which  are  binding  or  obligatory  on  the  defendant." 

The  conveyance  in  this  case  was  made  in  the  State  of  Wisconsin, 
and  a  scrawl  or  ink  seal  was  affixed  to  it,  rather  than  a  seal  of  wax  or 
wafer.  By  the  law  of  that  State,  it  is  provided,  that  "  any  instrument, 
to  which  the  person  making  the  same  shall  affix  any  device,  b}'  way  of 
seal,  shall  be  adjudged  and  held  to  be  of  the  same  force  and  obligation 
as  if  it  were  actually  sealed." 

But  in  the  State  of  New  York  it  has  been  repeatedly  held  (as  in 
Warren  v.  Lynch,  5  Johns.  239)  that,  by  its  laws,  such  device,  without 
a  wafer  or  wax,  are  not  to  be  deemed  a  seal,  and  that  the  proper  form 
of  action  must  be  such  as  is  practised  on  an  unsealed  instrument  in  the 
State  where  the  suit  is  instituted,  and  the  latter  must  therefore  be 
assumpsit.  12  Johns.  198;  2  Hill,  228,  544  ;  3  Hill,  493  ;  1  Denio, 
376  ;  5  Johns.  329  ;  Andrews  et  al.  v.  Herriott,  4  Cowen,  508,  overrul- 
ing Meridith  v.  Hinsdale,  2  Caines,  362;  4  Kent,  451  ;  8  Peters,  362; 
Story's  Conflict  of  Laws,  47.  A  like  doctrine  prevails  in  some  other 
States.     3  Gill  &  Johns.  234  ;  Douglas  et  al.  v.  Oldham,  6  N.  H.  150. 

It  becomes  our  duty,  then,  to  consider  the  instruction  given  here,  in 
an  action  brought  in  the  Circuit  Court  of  New  York,  as  correct  in  rela- 
tion to  the  form  of  the  remedy.  It  was  obliged  to  be  in  assumpsit  in 
the  State  of  New  York,  and  one  of  the  counts  was  special  on  the  prom- 
ise contained  in  the  covenant.  We  hold  this,  too,  without  impairing 
at  all  the  principle,  that,  in  deciding  on  the  obligation  of  the  instrument 
as  a  contract,  and  not  the  remedy  on  it  elsewhere,  the  law  of  Wiscon- 
sin, as  the  lex  loci  contractus,  must  govern.  Kobinson  v.  Campbell, 
3  Wheat.  212.^ 


HAMILTON  V.  SCHOENBERGER. 

Supreme  Court  of  Iowa.     1877. 

[Reported  47  Iowa,  385.] 

The  petitioner  alleges  that  a  judgment  had  been  entered  against  him 
in  the  Benton  District  Court  on  a  "judgment  note,"  upon  confession  of 
judgment  by  an  attorney  of  the  court,  not  authorized  to  appear  for  him 
except  by  the  power  contained  in  the  note  ;  and  asks  that  the  judgment 
be  declared  void  and  cancelled.  The  defendants  demurred  to  this  peti- 
tion.    The  demurrer  was  overruled,  and  judgment  was  rendered  can- 

»  Ace.  Thrasher  v.  Everhart,  3  G.  &  J.  234 ;  Broadhead  v.  Noyes,  9  Mo.  55 ; 
Andrews  v.  Herriott,  4  Cow.  508.     See  Williams  v.  Haines,  27  la.  251.  — Ed. 


272  MINERAL    POINT    RAILROAD   CO.   V.    BARRON.  'lCHAP.  V. 

celling  the  judgment  in  favor  of  defendants   against  plaintiff.     The 
defendants   appeal.^ 

Day,  C.  J.  Sojaras  weare  advised^itjias  never  been  the  under- 
standing  of  the  professioiTnorof  the" business  community  in  this^taTe" 
^thltv^rants-ot- attorney  to  confess  judgment  had.anypjacc  in  our -law. 
AcoHfeisionofludgment  pertains  to  the  remedy.  A  party  seeking  to 
enforce  here  a  contract  made  in  another  State  must  do  so  in  accordance 
with  tlie  laws  of  this  State.  Parties  cannot  by  contract  made  in  another 
State  engraft  upon  our  procedure  here  remedies  which  our  laws  do  not 
contemplate  nor  authorize. 

We  are  fully  satisfied  that  the  demurrer  to  the  petition  was  properly 
overruled.  Ajfirmed. 


MINERAL  POINT  RAILROAD   CO.  v.   BARRON. 

Supreme  Court  of  Illinois.     1876. 
[Reported  83  Illinois,  365.] 

Craig,  J.^  Under  the  laws  of  Wisconsin,  had  the  proceedings  been 
instituted  in  that  State,  tlie  wages  of  the  defendant  in  the  original  ac- 
tion were  exempt  from  garnishment,  and  it  is  urged  by  appellant,  that, 
as  the  parties  resided  in  that  State  and  the  debt  was  there  incurred,  the 
exemption  laws  of  Wisconsin  must  control,  although  the  proceedings 
for  the  collection  of  tlie  debt  were  commenced  in  tliis  State. 

It  is  true,  the  validity  of  a  contract  is  to  be  determined  by  the  law  of 
the  place  where  it  is  made,  but  the  law  of  the  remedy  is  no  part  of  the 
contract,  as  is  well  said  by  Parsons  on  Contracts,  vol.  2,  page  588  : 
"But  on  tlie  trial,  and  in  respect  to  all  questions  as  to  the  forms  or 
methods,  or  conduct  of  process  or  remedy,  the  \uw  of  the  place  of  the 
forum  is  applied." 

In  Sherman  v.  Gassett,  4  Gilman,  521,  after  referring  to  a  number  of 
cases  in  illustration  of  the  rule,  it  is  said  :  "  The  cases  above  referred 
to,  although  not  precisely  analogous,  yet  settle  the  principle  that  the 
lex  loci  only  governs  in  ascertaining  whether  the  contract  is  valid,  and 
what  the  words  of  the  contract  mean.  When  the  question  is  settled 
that  the  contract  of  the  parties  is  legal,  and  what  is  the  true  interpreta- 
tion of  the  language  employed  by  the  parties  in  framing  it,  the  lex  loci 
ceases,  and  the  lex  fori  steps  in  and  determines  the  time,  the  mode,  and 
the  extent  of  the  remedy." 

Statutes  of  limitations  fixing  the  time  within  which  an  action  may  be 
brought,  laws  providing  for  a  set-off  in  certain  actions,  and  statutes 
providing  that  certain  articles  of  personal  property,  wearing  apparel, 

*  The  statemetit  of  facts  has  bpen  .il)nflg('il,  and  part  of  the  opinion  ouiitted.  —  Ed. 

*  Part  of  the  ojiiniou  only  is  given.  —  Ed. 


CHAP,   v.]  GIBBS   V.    HOWAED.  273 

farming  implements,  and  the  tools  of  a  mechanic  shall  be  exempt  from 
levy  and  sale  upon  execution,  have  always,  so  far  as  our  observation 
o-oes,  been  regarded  by  courts  as  regulations  affecting  the  remedy  which 
might  be  enacted  by  each  State,  as  the  judgment  of  the  legislature  might 
think  for  the  best  interests  of  the  people  thereof.  Bronson  v.  Kinzie, 
1  Howard,  311. 

The  statute  of  Wisconsin,  under  which  appellant  was  not  liable  to  be 
garnisheed,  was  a  law  affecting  merely  the  remedy  where  an  action 
should  be  brought  in  the  courts  of  that  State.  That  law,  however,  can- 
not be  invoked  where  the  remedy  is  sought  to  be  enforced  in  the  courts 
of  this  State.  The  remedy  must  be  governed  by  the  laws  of  the  State 
where  the  action  is  instituted.^ 


GIBBS   y.    HOWARD. 
Superior  Court  of  .Judicature,   New  Hampshire.    1820. 

[Reported  2  New   Hampshire,  296.] 

This  was  an  action  of  assumpsit  upon  a  note  of  hand,  dated  Septem- 
ber 29,  1817,  for  $57,njade  by  Howard,  and  payable  to  Almon  Burgess, 
or  order,  in  the  month  of  April,  1818  ;  and  on  the  31st  of  October, 
1817,  indorsed  by  Burgess  to  Patience  Cone,  then  sole,  now  the  wife 
of  Gibbs,  the  plaintiff. 

The  defendant  pleaded  the  general  issue,  and  gave  notice  of  a  set-off 
consisting  of  three  notes  of  hand,  made  by  Almon  Burgess,  and  pay- 
able to  three  several  persons,  and  by  them  indorsed  to  the  defendant, 
November  1,  1817. 

The  cause  was  submitted  to  the  decision  of  the  court  upon  the  fol- 
lowing facts.  The  note  described  in  the  declaration  was  made  by 
Howa°d,  and  at  the  time  when  made,  the  original  parties  to  it  were 
both  inhabitants  of  the  State  of  Vermont.  The  same  note  was  for  a 
valuable  consideration  indorsed  to  Patience  Cone,  then  an  inhabitant  of 
Vermont,  before  it  became  due,  and  before  the  defendant  had  any  inter- 

1  Ace.  Chic,  R.  I.  &  P.  Rv.  V.  Sturm,  174  U.  S.  170  ;  Boykin  v.  Edwards,  21  Ala. 
261  ;  Broadstreet  v.  Clark,  65  la.  670  ;  B.  &  M.  R.  R.  v.  Thompson,  31  Kan.  180, 
1  Par  622  •  Morgan  v.  Neville,  74  Pa.  52.  But  see  Mo.  P.  Ry.  v.  Sharitt,  43  Kan. 
385,  23  Pac.  430  ;  Drake  v.  L.  S.  &  M.  S.  Ry.,  69  Mich.  168,  179,  37  N.  W.  70  In 
the  last  case,  Morse,  J.,  said  :  "  It  must  be  held,  I  think,  not  only  as  a  matter  of  sim- 
ple justice,  but  as  sound  law,  which  means  justice,  that  where  the  creditor,  debtor,  and 
garnishee,  at  the  time  of  the  creation  of  both  debts,  are  all  residents  and  doing  business 
hi  Indiana,  and  both  debts  are  created,  and  intended  to  be  payable,  in  that  State,  the 
.  exemption  of  wages  is  such  an  incident  and  condition  of  the  debt  from  the  employer 
that  it  will  follow  the  debt,  if  the  debt  follows  the  person  of  the  garnishee  into  Michi- 
gan, and  attach  itself  to  every  process  of  collection  in  this  State,  unless  jurisdiction  is 
obtained  over  the  person  of  the  principal  debtor ;  that  it  becomes  a  vested  right  zn  rem, 
which  follows  the  debt  into  any  jurisdiction  where  the  debt  may  be  considered  as 
going.  —  Ed.  18 


274  TOWXSEND    V.   JEMISON.  [CHAP.  V. 

est  in  the  notes  mentioned  in  the  set-off.  Gibbs  is  an  inhabitant  of 
Massachusetts.  There  is  a  statute  of  Vermont,  passed  on  the  31st 
October,  1798,  by  which  it  is  enacted,  "  that  in  all  actions  on  indorsed 
notes  it  shall  be  lawful  for  the  defendant  to  i:»lead  an  offset  of  all  de- 
mands proper  to  be  plead  in  offset  which  the  defendant  may  have 
against  the  original  payee,  before  notice  of  such  an  indorsement 
against  the  indorsee,  and  may  also  plead  or  give  in  evidence  on  the 
trial  of  any  such  action,  any  matter  or  thing  which  would  equitably  dis- 
charge  the  defendant  in  an  action  brought  in  the  name  of  the  original 
payee." 

And  it  was  agreed,  that  if  the  court  should  be  of  opinion  that  the 
defendant  could  not  avail  himself  of  the  set-off  filed  in  tlie  case,  judg-* 
ment  should  be  rendered  for  the  plaintiffs  for  the  amount  of  the  note 
described  in  the  declaration. 

By  the  Court.  It  is  very  clear  that  the  notes,  which  tl»e  defendant 
holds  against  Burgess,  are  not  a  legal  set-off  in  this  action  by  the  laws 
of  this  State  ;  and  it  is  equally  clear,  that  we  can  take  no  notice  of  the 
statute  of  Vermont.  The  lex  loci  must  settle  the  nature,  validity,  and 
interpretation  of  contracts,  but  it  extends  no  further.  The  laws  of  the 
State  in  which  contracts  are  attempted  to  be  enforced,  must  settle  what 
is  the  proper  course  of  judicial  proceedings  to  enforce  them.  The  stat- 
ute of  Vermont  relates  merely  to  tlie  remedy,  by  which  a  contract  may 
l)e  enforced.  There  must,  therefore,  according  to  the  agreement  of  the 
parties,  be  Judgment  for  the  plaintiff} 


TOWNSEND   V.   JEMISON. 

SUPRKME    CoUItT    OF    THK    UNITED    StATES.       1819. 
[Reported  9  Howard's  Reports,  407.] 

Wayne,  J.^  This  suit  has  been  brought  here  from  the  District 
Court  of  tlie  United  States  for  the  INIiddle  District  of  Alabama.  The 
defendant  in  the  court  below,  the  plaintiff  here,  besides  other  pleas, 
pleaded  that  the  cause  of  action  accrued  in  Mississippi  more  than 
three  years  before  the  suit  was  brought;  and  that  the  Mississippi 
statute  of  limitations  barred  a  recovery  in  the  District  Court  of  Ala- 
bama. The  plaintiir  demurred  to  the  plea.  The  court  sustained  the 
demurrer. 

We  do  not  think  it  necessary  to  do  more  than  to  decide   this  point 

in  the  case. 

The  rule  in  the  courts  of  the  United  States,  in  respect  to  pleas  of 
the  statutes  of  limitation,  has  always  been,  that  they  strictly  affect  the 

1  Arc.  Meyer  i;.  Dresser,  16  C.  B.  N.  s.  646  (scmhie) ;    Savery  v.  Savery,  3  la.  271 ; 
Davis  I'.  Morton,  5  Bush,  160.  —  Ed. 
a  The  opiuion  only  is  given  ;  it  sufficiently  states  the  case.  —  Ed. 


CHAP.  V.j  TOWNSEND    V.    JEMISON.  275 

remed}',  and  not  the  merits.  In  the  case  of  McElmo3-le  v.  Cohen,  13 
Peters,  312,  this  point  was  raised,  and  so  decided.  All  of  the  judges 
were  present  and  assented.  The  fullest  examination  was  then  made 
of  all  the  authorities  upon  the  subject,  in  connection  with  the  diversi- 
ties of  opinion  among  jurists  about  it,  and  of  all  those  considerations 
which  have  induced  legislatures  to  interfere  and  place  a  limitation  upon 
the  bringing  of  actions. 

We  thought  then,  and  still  think,  that  it  has  become  a  formular}'  in 
international  jurisprudence,  that  all  suits  must  be  brnnght  w'thin -th.e 
pj^rjofl  prpsf.ril>ed  bv  the  local  law  of  <-1ip'  prtnnt.ry  vvIipi-p  tliP>  suit  is- 
brought^j— -  the  lex  fori ;  otherwise  the  suit  would  be  barred,  unless 
the  plaintltl'  can  bring  himself  within  one  of  the  exceptions  of  the 
statute,  if  that  is  pleaded  by  the  defendant.  This  rule  is  as  fully 
recQofnized  in  foreign  jurisprudence  as  it  is  in  the  common  law.  We 
then  referred  to  authorities  in  the  common  law,  and  to  a  summary 
of  them  in  foreign  jurisprudence.  Burge's  Com.  on  Col.  and  For. 
Laws.  They  were  subsequently  cited,  with  others  besides,  in  the 
second  edition  of  the  Conflict  of  Laws,  483.  Among  them  will  be 
found  the  case  of  Lero}'  v.  Crowninshield,  2  Mason,  151,  so  much 
relied  upon  by  the  counsel  in  this  case. 

Neither  the  learned  examination  made  in  that  case  of  the  reasoning 
of  jurists,  nor  the  final  conclusion  of  the  judge,  in  opposition  to  his 
own  inclinations,  escaped  our  attention.  Indeed,  he  was  here  to 
review  them,  with  those  of  us  now  in  the  court  who  had  the  happiness 
and  benefit  of  being  associated  with  him.  He  did  so  with  the  same 
sense  of  judicial  obligation  for  the  maxim,  Stare  decisis  et  non  quieta 
rtiovere^  which  marked  his  official  career.  His  language  in  the  case  in 
Mason  fully  illustrates  it:  ^  But  I  do  not  sit  here  to  consider  what  in 
theory  ought  to  be  the  true  doctrines  of  the  law,  following  them  out 
upon  principles  of  philosophy  and  juridical  reasoning.  My  humbler 
and  safer  duty  is  to  administer  the  law  as  I  find  it,  and  to  follow  in 
the  path  of  authority,  where  it  is  clearly  defined,  even  though  that 
path  may  have  been  explored  by  guides  in  whose  judgment  the  most 
implicit  confidence  might  not  have  been  originally  reposed."  Then 
follows  this  declaration :  "It  does  appear  to  me  that  the  question  now 
before  the  court  has  been  settled,  so  far  as  it  could  be,  by  authorities 
which  the  court  is  bound  to  respect."  The  error,  if  an}'  has  been 
committed,  is  too  strongly  engrafted  into  the  law  to  be  removed  with- 
out the  interposition  of  some  superior  authority.  Then,  in  support  of 
this  declaration,  he  cites  Huberus,  Voet,  Pothier,  and  Lord  Kames, 
and  adjudications  from  English  and  American  courts,  to  show  that, 
whatever  ma}'  have  been  the  differences  of  opinion  among  jurists,  the 
uniform  administration  of  the  law  has  been,  that  the  lex  loci  contractus 
expounds  the  obligation  of  contracts,  and  that  statutes  of  limitation 
prescribing  a  time  after  which  a  plaintiflf  shall  not  recover,  unless  he 
can  bring  himself  within  its  exceptions,  appertain  ad  tempus  et  modum 
actio/lis  instituendcB   and    not   ad  valorem  contractus.     Williams  v. 


276  TOWNSEND    V.   JEMISON.  [CHAP.  V. 

Jones,  13  East,  439  ;  Nash  v.  Tupper,  1  Caines,  402 ;  Ruggles  v. 
Keeler,  3  Johns.  263 ;  Pearsall  v.  Dvvight,  2  Mass.  84 ;  Decouche 
V.  Savetier,  3  Johns.  Ch.  190,  218  ;  McCluny  v.  Silliiuan,  3  Peters, 
276  ;  Hawkins  v.  Barney,  5  Peters,  457  ;  Bank  of  the  United  States 
V.  Donnally,  8  Peters,  361  ;  McElmoyle  v.  Cohen,  13  Peters,  312. 

Tliere  is  nothing  in  Siielby  v.  Guy,  11  Wheaton,  361,  in  conflict  with 
what  this  court  decided  in  the  four  hist-mentioned  cases.  Its  action 
upon  the  point  has  been  uniform  and  decisive.  In  cases  before  and 
since  decided  in  England,  it  will  be  found  there  has  been  no  fluc- 
tuation in  the  rule  in  the  courts  there.  _Thp  rn1f>  is,  t.liat  the  statute  of 
limitations  o_f_the_country  in  which  the  suit  is  brought  niay_be  pleaded/ 
to  bar  a  rfii:QA:ery_iipQiL a  contract  tnnde  out  of  its  political  jurisdictiQn.| 
^^^jj^^tli"  Hm'>itir>n  nf  tl^P  l.PT.  loci  c.onfrac.liiii  p.nnnot  \\<^,.  2  Bing- 
ham, New  Cases,  202,  211  ;  Don  v.  Lippman,  5  Clark  &  Y\\\.  1,  16, 
17.  It  has  become,  as  we  have  already  said,  a  fixed  rule  of  the  jus 
rjemthi.m,  prhmtum^  unalterable,  in  our  opinion,  either  in  England  or  in 
the  States  of  the  United  States,  ornopt  hy  lp|Tigln,t-|ivp  pngH.TT^pnt_ 

We  will  not  enter  at  large  into  the  learning  and  philosophy  of  the 
question.  We  remember  the  caution  given  by  Lord  Stair  in  the  sup- 
plement to  his  Institutes  (p.  852),  about  citing  as  authorities  the  works 
and  publications  of  foreign  jurists.  It  is  appropriate  to  the  occasion, 
having  been  written  to  correct  a  mistake  of  Lord  Tenterden,  to  whom 
no  praise  could  be  given  which  would  not  be  deserved  by  his  equally 
distinguished  contemporary.  Judge  Story.  Lord  Stair  says:  "There 
is  in  Abbott's  Law  of  Shipping  (5th  edition,  p.  365)  a  singular  mis- 
take ;  and,  considering  the  justly  eminent  character  of  the  learned 
author  for  extensive,  sound,  and  practical  knowledge  of  the  English 
law,  one  which  ought  to  operate  as  a  lesson  on  this  side  of  the  Tweed,  as 
well  as  on  the  other,  to  be  a  little  cautious  in  citing  the  works  and  pub- 
lications of  foreign  jurists,  since,  to  comprehend  their  bearings,  such 
a  knowledge  of  the  foreign  law  as  is  scarcely  attainable  is  absolutely 
requisite.  It  is  magnificent  to  array  authorities,  but  somewhat  humili- 
ating to  be  detected  in  errors  concerning  them  ;  —  yet  how  can  errors  be 
avoided  in  such  a  case,  when  every  day's  experience  warns  us  of  the 
prodigious  study  necessary  to  the  attainment  of  proficiency  in  our  own 
law?  My  object  in  adverting  to  the  mistake  in  the  work  referred  to  is, 
not  to  depreciate  the  author,  for  whom  I  entertain  unfeigned  respect, 
but  to  show  that,  since  even  so  justly  distinguished  a  lawyer  fails  when 
he  travels  beyond  the  limits  of  his  own  code,  the  attempt  must  be  infi- 
nitely hazardous  with  others." 

We  will  now  venture  to  suggest  the  causes  which  mislcdjjie-j£a£12£d. 
judge  in  Lc-rovw.  Crowninshield  into  a  conclusion,  that  if  the  question 
beforelilm  hacrbccir  entirely^ew,  his  inclination  would  strongly  lead 
him  to  declare,  that  where  all  remedies  are  barred  or  discharged  by  the 
lex  loci  contractus,  and  have  operated  upon  the  case,  then  the  bar  may 
be  pleaded  in  a  foreign  tribunal,  to  repel  any  suit  brought  to  enforce 
tho  debt 


CHA-P.  v.]  TOWNSEND    V.    JEMISON.        '  277 

We  remark,  first,  that  only  a  few  of  the  civilians  who  have  written 
upon  the  point  differ  from  the  rule,  that  statutes  of  limitation  relate 
to  the  remedy  and  not  to  the  contract.  If  there  is  an}-  case,  either  in 
our  own  or  the  English  courts,  in  which  the  point  is  more  discussed 
than  it  is  in  Leroy  v.  Crowninshield  we  are  not  acquainted  with  it.  In 
every  case  but  one,  either  in  England  or  in  the  United  States,  in  which 
the  point  has  since  been  made,  that  case  has  been  mentioned,  and  it  has 
carried  some  of  our  own  judges  to  a  result  which  Judge  Story  himself 
did  not  venture  to  support. 

We  do  not  find  him  pressing  his  argument  in  Leroy  v.  Crowninshield 
in  the  Conflict  of  Laws,  in  which  it  might  have  fceen  appropriately 
done,  if  his  doubts,  for  so  he  calls  them,  had  not  been  removed. 
Twenty  years  had  then  passed  between  them.  In  all  that  time,  when 
so  much  had  been  added  to  his  learning,  really  great  before,  that  by 
common  consent  he  was  estimated  in  jurisprudence  par  summis,  we 
find  him,  in  the  Conflict  of  Laws,  stating  the  law  upon  the  point  in 
opposition  to  his  former  doubts,  not  in  deference  to  authority  alone, 
but  from  declared  conviction. 

The  point  had  been  examined  by  him  in  Leroy  v.  Crowninshield 
without  any  consideration  of  other  admitted  maxims  of  international 
jurisprudence,  having  a  direct  bearing  upon  the  subject.  Among 
others,  that  the  obligation  of  every  law  is  confined  to  the  State  in 
which  it  is  established,  that  it  can  only  attach  upon  those  who  are  its 
subjects,  and  upon  others  who  are  within  the  territorial  jurisdiction  of 
the  State ;  that  debtors  can  only  be  sued  in  the  courts  of  the  jurisdic- 
tion where  they  are  ;  that  all  courts  must  judge  in  respect  to  remedies 
from  their  own  laws,  except  when  conventionally,  or  from  the  decisions 
of  courts,  a  comity  has  been  established  between  States  to  enforce  in 
the  courts  of  each  a  particular  law  or  principle.  When  there  is  no 
positive  rule,  affirming,  denying,  or  restraining  the  operation  of  foreign 
laws,  courts  establish  a  comity  for  such  as  are  not  repugnant  to  the 
policy  or  in  conflict  with  the  laws  of  the  State  from  which  they  derive 
their  organization.  We  are  not  aware,  except  as  it  has  been  brought 
to  our  notice  by  two  cases  cited  in  the  argument  of  this  cause,  that  it 
has  ever  been  done,  either  to  give  or  to  take  away  remedies  from 
suitors,  when  there  is  a  law  of  the  State  where  the  suit  is  brought 
which  regulates  remedies.  But  for  the  foundation  of  comity,  the  man- 
ner of  its  exercise,  and  the  extent  to  which  courts  can  allowably  carry 
it,  we  refer  to  the  case  of  the  Bank  of  Augusta  v.  Earle,  13  Peters, 
519,  589  ;  Conflict  of  Laws,  Comity. 

From  what  has  just  been  said,  it  must  be  seen,  when  it  is  claimed 
that  statutes  of  limitation  operate  to  extinguish  a  contract,  and  for 
that  reason  the  statute  of  the  State  in  which  the  contract  was  made 
may  be  pleaded  in  a  foreign  court,  that  it  is  a  point  not  standing  alone, 
disconnected  from  other  received  maxims  of  international  jurisprudence. 
And  it  may  well  be  asked,  before  it  is  determined  otherwise,  whether 
contracts  by  force  of  the  different  statutes  of  limitations  in  States  are 


278  TOWNSEND    V.   JEMISON.  [CHAP.  V. 

not  exceptions  from  the  ganeral  rule  of  the  lex  loci  contractus.  There 
are  such  exceptions  for  dissolving  and  discharging  contracts  out  of  the 
jurisdiction  in  which  they  were  made.  The  limitations  of  remedies, 
and  the  forms  and  modes  of  suit,  make  such  an  exception.  Confl.  of 
Laws,  271,  and  524  to  527.  We  may  then  infer  that  the  doubts 
expressed  in  Leroy  (k  Crowninshield  would  have  been  withheld  if  the 
point  had  been  considered  in  the  connection  we  have  mentioned. 

We  have  found,  too,  that  several  of  the  civilians  who  wrote  upon 
the  question  did  so  without  having  kept  in  mind  the  ditference  between 
the  positive  and  negative  prescription  of  the  civil  law.  In  doing  so, 
some  of  them  —  no*  regarding  the  latter  in  its  more  extended  signifi- 
cation as  including  all  those  bars  or  exceptions  of  law  or  of  fact  wliich 
raav  be  opposed  to  the  prosecution  of  a  claim,  as  well  out  of  the  juris- 
diction in  which  a  contract  was  made  as  in  it  —  were  led  to  the  conclu- 
sion, that  the  prescription  was  a  part  of  the  contract,  and  not  the 
denial  of  a  remedy  for  its  enforcement.  It  may  be  as  well  here  to 
state  the  difference  between  the  two  prescriptions  in  the  civil  law. 
Positive,  or  the  Roman  usucaptio,  is  the  acquisition  of  property,  real 
or  personal,  immovable  or  movable,  by  the  continued  possession  of  the 
acquirer  for  such  a  time  as  is  described  by  the  law  to  be  sufficient. 
Erskine's  Inst.  556.  '•'■  Adject io  dominii  2>&r  continuationem  posses- 
sionis  temporis  ler/i  dejiniti."     Dig.  3. 

Negative  prescription  is  the  loss  or  forfeiture  of  a  right  by  the  pro- 
prietor's neglecting  to  exercise  or  prosecute  it  daring  the  whole  period 
which  the  law  hath  declared  to  be  sufficient  to  infer  the  loss  of  it.  It 
includes  the  former,  and  appUes  also  to  all  those  demands  wliich  are 
the  subject  of  personal  actions.     Erskine's  Inst.  560,  and  3  Burge,  26. 

Most  of  the  civilians,  however,  did  not  lose  sight  of  the  differences 
between  these  prescriptions,  and  if  their  reasons  for  doing  so  had  been 
taken  as  a  guide,  instead  of  some  expressions  used  by  them,  in  respect 
to  what  may  be  presumed  as  to  the  extinction  or  payment  of  a  claim, 
•while  the  plea  in  bar  is  pending,  we  do  not  think  that  any  doubt  would 
have  been  expressed  concerning  the  correctness  of  their  other  conclu- 
sion, that  statutes  of  limitation  in  suits  upon  contracts  only  relate  to 
the  remedy.  But  that  was  not  done,  and,  from  some  expressions  of 
Pothier  and  Lord  Kames,  it  was  said,  "  If  the  statute  of  limitations 
does  create,  proprio  vigore,  a  presumption  of  the  extinction  or  payment 
of  the  debt,  which  all  nations  ought  to  regard,  it  is  not  easy  to  see  why 
the  presumption  of  such  payment,  thus  arising  from  the  lex  loci  con- 
tractus, should  not  be  as  conclusive  in  every  other  place  as  in  the  place 
of  the  contract."  And  that  was  said  in  Leroy  v.  Crowninshield,  in  op- 
position to  the  declaration  of  both  of  those  writers,  that  in  any  other 
place  than  that  of  the  contract  such  a  presumption  could  not  be  made 
to  defeat  a  law  providing  for  proceedings  upon  suits.  Here,  turning 
aside  for  an  instant  from  our  main  purpose,  we  find  the  beginning  or 
source  of  those  constructions  of  the  English  statutes  of  limitation 
which  almost  made  them  useless  for  the  accomplishment  of  their  end. 


CHAP.  T.]  TOWNSEND    V.   JEMISON.  279 

Within  a  few  years,  tbe  abuses  of  siicli  constructions  have  been  much 
corrected,  and  we  are  now,  in  the  English  and  American  courts,  nearer 
to  the  legislative  intent  of  such  enactments. 

But  neither  Pothier  nor  Lord  Kanies  meant  to  be  understood,  that 
the  theor}-  of  statutes  of  limitation  purported  to  afford  positive  pre- 
sumptions of  pa3ment  and  extinction  of  contracts,  according  to  the 
laws  of  the  [)lace  where  the}'  are  made.  (The  extract  which  was  made 
from  Pothier  shows  his  meaning  is,  that,  when  the  statute  of  limitations 
has  been  pleaded  b}-  a  defendant,  the  presumption  is  in  his  favor  that 
he  has  extinguished  and  discharged  his  contract,  until  the  plaintiff 
overcomes  it  h\  proof  that  he  is  within  one  of  those  exceptions  of  the 
statute  which  tal^es  it  out  of  the  time  after  which  he  cannot  bring  a  suit 
to  enforce  judicially  the  obligation  of  the  defendant.  ^The  extract 
from  Lord  Kames  only  shows  what  may  be  done  in  Scotland  when  a 
process  has  been  brought  for  payment  of  an  English  debt,  after  the 
English  prescription  has  taken  place.  The  English  statute  cannot  be 
pleaded  in  Scotland  in  such  a  case,  but,  according  to  the  law  of  that 
forum,  it  may  be  pleaded  that  the  debt  is  presumed  to  have  been  paid. 
And  it  makes  an  issue,  in  whicli  the  plaintiff  in  the  suit  ma}'  show  that 
such  a  presumption  does  not  appl}'  to  his  demand ;  and  that  without 
any  regard  to  the  prescription  of  time  in  the  English  statute  of  limita- 
tion. It  is  upon  this  presumption  of  pa^-ment  that  the  conclusion  in 
Leroy  v.  Crowninshield  was  readied,  and  as  it  is  now  universally  ad- 
mitted that  it  is  not  a  correct  theory  for  the  administration  of  statutes 
of  limitation,  we  ma}'  say  it  was  in  fact  because  that  theory  was 
assumed  in  that  case  that  doubts  in  it  were  expressed,  contrary  to  the 
judgment  which  was  given,  in  submission  to  what  was  admitted  to  be 
the  law  of  the  case.  What  we  have  said  may  serve  a  good  purpose. 
It  is  pertinent  to  the  point  raised  by  the  pleading  in  the  case  before  us, 
and  in  our  judgment  there  is  no  error  in  the  District  Court's  having 
sustained  the  demurrer. 

Before  concluding,  we  will  remark  that  nothing  has  been  said  in  this 
case  at  all  in  conflict  with  what  was  said  by  this  court  in  Shelby  v. 
Guv,  11  Wheaton,  361.  The  distinctions  made  by  us  here  between 
statutes  giving  a  right  to  property  from  possession  for  a  certain  time, 
and  such  as  only  take  away  remedies  for  the  recovery  of  property  after 
a  certain  time  has  passed,  confirm  it.  In  Shelby*  v.  Guy  this  court 
declared  that,  as  by  the  laws  of  Virginia  five  years'  bona  fide  posses- 
sion of  a  slave  constitutes  a  good  title  upon  which  the  possessor  may 
recover  in  detinue,  such  a  title  may  be  set  up  by  the  vendee  of  such 
possessor  in  the  courts  of  Tennessee  as  a  defence  to  a  suit  brought  by 
a  third  party  in  those  courts.  The  same  had  been  previously  ruled  in 
this  court  in  Brent  v.  Chapman,  5  Cranch,  358  ;  and  it  is  the  rule  in 
all  cases  where  it  is  declared  by  statute  that  all  rights  to  debts  due  more 
than  a  prescribed  term  of  years  shall  be  deemed  extinguished,  and  that 
all  titles  to  real  and  personal  property  not  pressed  within  the  prescribed 
time  shall  give  ownership  to  an  adverse  possessor.    Such  a  law,  though 


280  TOWNSEND   V.   JEMISON.  [CHAP.  V. 

one  of  limitation,  goes  direct!}'  to  the  extinguishment  of  the  debt, 
claim,  or  right,  and  is  not  a  bar  to  the  remedy.  Lincoln  v.  Battelle, 
8  Wend.  475  ;  Confl.  of  Laws,  582. 

In  Lincoln  v.  Battelle,  6  Wend.  475,  the  same  doctrine  was  held.  It 
is  stated  in  the  Conflict  of  Laws,  582,  to  be  a  settled  point.  The  courts 
of  Louisiana  act  upon  it.  We  could  cite  other  instances  in  which  it 
has  been  announced  in  American  courts  of  the  last  resort.  In  the 
cases  of  De  la  Vega  v.  Vianna,  1  Barn.  &  Adol.  284,  and  the  British 
Linen  Company  v.  Drummond,  10  Barn.  &  Cres.  903,  it  is  said  that,  if 
a  French  bill  of  exchange  is  sued  in  England,  it  must  be  sued  on 
according  to  the  laws  of  England,  and  there  the  English  statute  of 
limitations  would  form  a  bar  to  the  demand  if  the  bill  had  been  due 
for  more  than  six  years.  In  the  case  of  Don  v.  Lippman,  5  Clark  & 
Fin.  1,  it  was  admitted  by  the  verj'  learned  counsel  who  argued  that 
case  for  the  defendants  in  error,  that,  though  the  law  for  expounding  a 
contract  was  the  law  of  the  place  in  which  it  was  made,  the  remed}'  for 
enforcing  it  must  be  the  law  of  the  place  in  which  it  is  sued.  In  that 
case  will  be  found,  in  the  argument  of  Lord  Brougham  before  the 
House  of  Lords,  his  declaration  of  the  same  doctrine,  sustained  by  very 
cogent  reasoning,  drawn  from  what  is  the  actual  intent  of  the  parties  to 
a  contract  when  it  is  made,  and  from  the  inconveniences  of  pursuing  a 
different  course.  In  Beckford  and  others  v.  Wade,  17  Vese}',  87,  Sir 
William  Grant,  acknowledging  the  rule,  makes  the  distinction  between 
statutes  merely  barring  the  legal  remedy'  and  such  as  prohibit  a  suit 
from  being  brought  after  a  specified  time.  It  was  a  case  arising  under 
the  possessory  law  of  Jamaica,  which  converts  a  possession  for  seven 
years  under  a  deed,  will,  or  other  conveyance,  into  a  positive  absolute 
title,  against  all  the  world, — without  exceptions  in  favor  of  any  one  or  any 
right,  however  a  part}'  may  have  been  situated  during  that  time,  or  what- 
ever his  previous  right  of  property  may  have  been.  There  is  a  statute 
of  the  same  kind  in  Rhode  Island.  2  R.  I.  Laws,  363,  364,  ed.  1822. 
In  Tennessee  there  is  an  act  in  some  respects  similar  to  the  possessory 
law  of  Jamaica ;  it  gives  an  indefeasible  title  in  fee  simple  to  lands  of 
which  a  person  has  had  possession  for  seven  years,  excepting  only  from 
its  operation  infants,  feme  coverts,  non  compotes  mentis^  persons  im- 
prisoned or  beyond  the  Hmits  of  the  United  States  and  the  territories 
thereof,  and  the  heirs  of  the  excepted,  provided  they  bring  actions 
within  three  years  after  they  have  a  right  to  sue.  Act  of  November  16, 
1817,  ch.  28,  §§  1,  2.  So  in  North  Carolina  there  is  a  provision  in 
the  act  of  1715,  ch.  17,  §  2,  with  the  same  exceptions  as  in  the  act  of 
Tennessee,  the  latter  being  probably  copied  substantially  from  the 
former.  Thirty  years'  possession  in  Louisiana  prescribes  land,  though 
possessed  without  title  and  mala  fide. 

We  have  mentioned  those  acts  in  our  own  States  only  for  the  pur- 
pose of  sliowing  the  difference  lietween  statutes  giving  title  from  posses- 
sion, and  such  as  only  limit  the  bringing  of  suits.  It  not  unfrequcntly 
happens  in  legislation  that  such  sections  are  found  in  statutes  for  the 


CHAP,  v.]  THE    HAERISBURG.  28\ 

limitation  of  actions.  It  is,  in  fact,  because  they  have  been  overlooked 
that  the  distinction  between  them  has  not  been  recognized  as  much  as 
it  ought  to  have  been,  in  the  discussion  of  the  point  whether  a  certain 
time  assigned  bj'  a  statute,  within  which  an  action  must  be  brought,  is 
a  part  of  the  contract,  or  solel}^  the  remedy.  ^The  rule  in  such  a  case 
is,  that  the  obligations  of  the  contract  upon  the  parties  to  it,  except  in 
well-known  cases,  are  to  be  expounded  by  the  lex  loci  contractus. 
Suits  brought  to  enforce  contracts,  either  in  the  State  where  thev  were 
made  or  in  the  courts  of  other  States,  are  subject  to  the  remedies  of  the 
forum  in  which  the  suit  is,  including  that  of  statutes  of  limitation.  ^ 

Judgment  affirmed.'^ 


THE   HAERISBURG. 

Supreme  Court  of  the  United  States.     1886. 

[Reported  119  United  States,  199.] 

This  is  a  suit  in  rem  begun  in  the  District  Court  of  the  United  States 
for  the  Eastern  District  of  Pennsylvania,  on  the  25th  of  February, 
1882,  against  the  steamer  "  Harrisburg,"  bj'  the  widow  and  child  of 
Silas  E.  Rickards,  deceased,  to  recover  damages  for  his  death  caused 
by  the  negligence  of  the  steamer  in  a  collision  with  the  schooner 
"  Marietta  Tilton,"  on  the  1 6th  of  May,  1877,  about  one  hundred  yards 
from  the  Cross  Rip  Light  Ship,  in  a  sound  of  the  sea  embraced  between 
the  coast  of  Massachusetts  and  the  Islands  of  Martha's  Vinej'ard  and 
Nantucket,  parts  of  the  State  of  Massachusetts.  The  steamer  was  en- 
gaged at  the  time  of  the  collision  in  the  coasting  trade,  and  belonged 
to  the  port  of  Philadelphia,  where  she  was  duly  enrolled  according  to 
the  laws  of  the  United  States.  The  deceased  was  first  officer  of  the 
schooner,  and  a  resident  of  Delaware,  where  his  widow  and  child  also 
resided  when  the  suit  was  begun. 

The  statutes  of  Pennsylvania  in  force  at  the  time  of  the  collision 
provided  that,  "  whenever  death  shall  be  occasioned  b}'  unlawful  vio- 
lence or  negligence,  and  no  suit  for  damages  be  brought  by  the  party 
injured,  during  his  or  her  life,"  "the  husband,  widow,  children,  or 
parents  of  the  deceased,  and  no  other  relative,"  "may  maintain  an 
action  for  and  recover  damages  for  the  death  thus  occasioned."  "  The 
action  shall  be  brought  within  one  3'ear  after  the  death,  and  not  there- 
after." Brightly's  Purdon's  Dig.  11th  ed.,  1267,  §§  3,  4,  5  ;  Act  of 
April  15,  1851,  §  18  ;  Act  of  April  6,  1855,  §§  1,  2. 

1  Ace.  Don  V.  Lippraan,  5  CI.  &  Fin.  1  ;  Alliance  Bank  v.  Carey,  5  C.  P.  D.  429  ; 
Bank  of  U.  S.  v.  Donnally,  8  Pet.  361  ;  Biirgett  v.  Williford,  56  Ark.  187,  19  S.  W. 
750  ;  Atwater  v.  Townsend,  4  Conn.  47  ;  Collins  v.  Manville,  170  111.  614,  48  N.  E. 
914  ;  Labatt  v.  Smith,  83  Ky.  599  ;  Pearsall  v.  Dwight,  2  Mass.  84  ;  Perkins  v.  Guy, 
55  Miss.  153  ;  Carson  v.  Hunter,  46  Mo.  467  ;  Warren  v.  Lynch,  5  Johns.  239  ;  Watson 
».  Brewster,  1  Barr,  381.  —  Ed. 


282  THE   HAREISBUEG.  [CHAP.  V. 

By  a  statute  of  Massachusetts  relating  to  railroad  corporations,  it 
was  provided  that  "  if,  by  reason  of  the  negligence  or  carelessness  of  a 
corporation,  or  of  the  unfitness  or  gross  negligence  of  its  servants  or 
agents  while  engaged  in  its  business,  the  life  of  any  person,  being  in 
the  exercise  of  due  diligence,  ...  is  lost,  the  corporation  shall  be  pun- 
ished by  a  fine  not  exceeding  five  thousand  nor  less  than  five  hun- 
dred dollars,  to  be  recovered  by  indictment  and  paid  to  the  executor 
or  administrator  for  the  use  of  the  widow  and  children."  ..."  Indict- 
ments against  corporations  for  loss  of  life  shall  be  prosecuted  within 
one  year  from  the  injury  causing  the  death."  Mass.  Gen.  Sts.  1860,  c. 
63,  §§  97-99  ;  Stat.  1874,  c.  372,  §  163.^ 

Waite,  C.  J.  We  are  entirely  satisfied  that  this  suit  was  begun  too 
late.  The  statutes  create  a  new  legal  liability,  with  a  right  to  a  suit  for 
its  enforcement,  provided  the  suit  is  brought  within  twelve  months,  and 
not  otherwise.  The  tim^  withj"  wh'^'h  tlip  snit,  must  he  hrf.nf7ht^^»p^- 
ates  as  a  Umitation  of  the  liabilitv  itself  as  crpnted,  nnd  not  nf  tlie - 
'TemeHya"lon_e.  lUs  a  condition  attached  to  the  right  tn  si]p  at.  p11,  No 
one  will  pretend  that  the  suit  in  Pennsylvania,  or  the  indictment  in 
Massachusetts,  could  be  maintained  if  brought  or  found  after  the  expi- 
ration of  the  year,  and  it  would  seem  to  be  clear  that,  if  the  admiralty 
adopts  the  statute  as  a  rule  of  right  to  be  administered  within  its  own 
jurisdiction,  it  must  take  the  right  subject  to  the  limitations  which  have 
been  made  a  part  of  its  existence.  It  matters  not  that  no  rights  of 
innocent  parties  have  attached  during  the  delay.  Time  has  been  made 
of  the  essence  of  the  right,  and  the  right  is  lost  if  the  time  is  disre- 
garded. JThpj2n}Mlity  nnd  t,lip  vomPf]y  nr^  prpgt.prl  hv  tlipj-imn  ntnttitun, 
and  the  limitations  of  the  remedy  are,  there fore,_to_bf^  tyQi;iU^^^-rv=,  liini Na- 
tions of  the  rights  ]So~question  arises  in  this  case  as  to  the  power  of  a 
court  of  admiralt}'  to  allow  an  equitable  excuse  for  delay  in  suing,  be- 
cause no  excuse  of  any  kind  has  been  shown.  As  to  this,  it  only  appears 
that  the  wrong  was  done  in  May,  1877,  and  that  the  suit  was  not  brought 
until  February,  1882,  while  the  law  required  it  to  be  brought  within  a 
year. 

The  decree  of  the  Circuit  Court  is  reversed^  and  the  cause  remaiuled^ 
with  instructio7is  to  dismiss  the  libel.^ 

1  Only  so  much  of  the  case  as  involves  the  question  of  limitation  of  time  is  given. 
Arguments  of  counsel  are  omitted.  —  En. 

'i  See  Brunswick  Terminal  Co.  v.  Bank,  99  Fed.  635.  —  Ed. 


CHAP,  v.]   HOADLEY  V.   NOKTHERN  TRANSPORTATION  CO.       283 

HOADLEY   V.   NORTHERN   TRANSPORTATION   CO. 

Supreme  Judicial  Court  of  Massachusetts.     1874. 

[Reported  115  Massachusetts,  304.] 

Colt,  J.^  The  plaintiff  seeks  to  recover  in  tort  against  the  defendant 
as  a  common  carrier  for  the  loss  of  a  steam-engine  which  it  had  under- 
taken to  transport  from  Chicago,  Illinois,  and  deliver  to  him  at  Law- 
rence in  this  State.  The  engine  was  destroyed  at  Chicago  in  the  great 
fire  of  1871,  and  one  question  at  the  trial  was,  whether  bj-  the  terms  of 
the  contract  of  transportation  the  defendant  was  liable  for  this  loss. 

The  plaintiff  put  in  the  bill  of  lading  received  b}'  his  agent  at  Chicago 
of  the  defendant  at  the  time  the  propert}'  was  delivered  for  transporta- 
tion. It  is  in  the  usual  form,  and  the  terms  and  conditions  are  ex- 
pressed in  the  body  of  the  paper  in  a  way  not  calculated  to  escape 
attention.  In  one  clause  it  exempts  the  defendant  from  all  liability 
for  loss  or  damage  by  fire  ;  in  another  from  all  liability  "  for  loss  or 
damage  on  any  article  or  property  whatever  b\'  fire  while  in  transit  or 
while  in  depots  or  warehouses  or  places  of  transshipment,"  and  further 
provides  that  the  deUvery  of  the  bill  of  lading  shall  be  conclusive  evi- 
dence of  assent  to  its  terms. 

It  was  assumed  by  both  parties  as  now  settled  that  a  common  car- 
rier ma}'  b}'  special  contract  avoid  or  limit  his  liability  at  common  law 
as  an  insurer  of  propert}-  intrusted  to  him  against  loss  or  damage  by 
fire  occurring  without  his  own  fault.  Such  is  the  declared  law  of  this 
Commonwealth,  and  the  Illinois  cases  produced  at  the  trial  assume  that 
the  same  rule  prevails  there.  An  express  contract,  once  established, 
is  in  both  States  effectual  to  limit  the  carrier's  liability.  But  the  plain- 
tiff contended  that  by  the  law  of  Illinois,  as  declared  in  the  courts  of 
that  State,  the  mere  receipt,  without  objection,  of  a  bill  of  lading  which 
limits  the  carrier's  common  law  liability  for  loss  by  fire,  would  not 
raise  a  presumption  that  its  terms  were  assented  to,  but  such  assent, 
if  relied  on,  must  be  shown  by  other  and  additional  evidence.  The 
jury  have  found  this  to  be  the  law  of  that  State,  under  instructions  not 
objected  to,  and  we  are  not  required  to  say  whether  there  was  sufficient 
evidence  to  warrant  the  finding.  Adams  Express  Company  v.  Haynes, 
42  111.  89;  American  Express  Company  v.  Schier,  55  111.  140,  150; 
Illinois  Central  Railroad  v.  Frankenberg,  54  111.  88,  98.  The  court 
ruled  that  this  law  of  Illinois  must  govern  the  case,  and  that  under  it 
the  jury  could  not  find  that  the  mere  receipt  of  the  bill  of  lading  would 
be  evidence  of  assent  to  its  terms. 

The  law  of  this  Commonwealth  differs  from  the  law  of  Illinois  as  thus 
found.  In  Grace  v.  Adams,  100  Mass.  505,  decided  by  this  court  on 
an  agreed  statement  of  facts,  it  was  held  that  a  bill  of  lading  or  ship- 
ping receipt,  taken  by  a  consignor  without  dissent  at  the  time  of  the 
delivery  of  the  property  for  transportation,  by  the  terms  of  which  the 
carrier  stipulates  against  such  liability,  would  exempt  the  carrier  when 
1  Part  of  the  opinion  only  is  given.  —  Ed. 


284  HOADLEY   V.   NORTHERN    TRANSPORTATION    CO.       [CHAP.    V» 

the  loss  was  not  caused  by  his  own  negligence,  on  the  ground  that  such 
acceptance  would  authorize  him  to  infer  assent,  and  amount  to  evidence 
of  the  contract  between  the  parties.  The  defendant  contends  that 
the  case  is  to  be  tried  b}-  the  law  of  this  Commonwealth. 

It  is  a  general  rule  that  personal  contracts  must  lia^p  tlio  anmp  I'nfor- 
pretation  and  bindi"ng  force  uTall  countrips  whirli  they  h.qyf  '"  ^'^'^ 
j2Jn(^ft  whprft  made.  The  contract  is  presumed  to  have  been  entered 
into  with  reference  to  the  law  of  that  place.  If  formalities  and  solemni- 
ties are  there  required  to  give  validity  to  it,  the  requirement  must  be 
shown  to  have  been  observed.  But  the  law  of  the  place  where  the 
action  is  brought,  by  the  same  general  rule,  regulates  the  remedy  and 
all  the  incidents  of  the  remedy  upon  it.  Thg_iaw  of  the  former  place 
determines  the  right ;  the  law  of  the  latter  controls  the  admission~oY 
evlHenceTnd~presCT5es~Ttig^  ol  proof  by  which  the  terms  ofjjia. 


ecFTltractai-e  made~known  to  the"couVt^as^ell  as  the  ."ormof  the  action^ 
bT^hichitlsrelifofcea: — Thus  in  a  suit  in  Connecticut  against  the  in- 
dorser  on  a  note  made  and  indorsed  in  New  York,  it  was  held  that 
parol  evidence  of  a  special  agreement  different  from  that  implied  by 
law  would  be  received  in  defence,  although  by  the  law  of  the  latter 
State  no  agreement  different  from  that  which  the  law  implies  from  a 
blank  indorsement  could  be  proved  by  parol.  Downer  v.  Chesebrough, 
36  Conn.  39.  And  upon  the  same  principle  it  has  been  held  that  a 
contract  valid  by  the  laws  of  the  place  where  it  is' made,  although  not 
in  writing,  will  not  be  enforced  in  the  courts  of  a  country  where  the 
statute  of  frauds  prevails  unless  it  is  put  in  writing  as  required.  Leroux 
V.  Brown,  12  C.  B.  801.  So  assumpsit  was  held  to  lie  in  New  York 
on  an  undertaking  in  Wisconsin  contained  in  a  writing  having  a  scrawl 
and  no  seal  affixed  to  the  defendant's  name,  although  in  the  latter 
State  it  had  in  pleadings  and  in  evidence  the  effect  of  a  seal.  Le  Roy 
V.  Beard,  8  How.  451.  The  statute  of  limitations  for  the  same  reasons 
affects  only  the  remedy,  and  has  no  extra-territorial  force. 

It  is  not  always  indeed  easy  to  determine  wliether  the  rule  of  law 
sought  to  be  applied  touches  the  validity  of  the  contract  or  only  the 
remedy  upon  it.  In  the  opinion  of  the  court,  the  rn1e_of  law  laid  down 
in  Illinois  and  here  relied  on  by  the  plaintiff  affects  the  remedy  only, 
a£d_ought  not  to  contrnl  t|io  rQiirt.c;  of  f^iis  Con)monwealtlL.__Tlie  nature 
and  validity  of  the  special  contract  set  up  is  the  same  in  both  States. 
Jt-ia-QuJv  a  difference  in  the  mode  of  proof.  A  presumption  of  fact  in 
one  State  is  held  legally  sufTicient  to  prove  assent  to  the  special  con- 
tract relied  on  to  support  the  defence.  In  the  other  State  it  is  held  not 
to  be  sufficient.  It  is  as  if  proof  of  the  contract  depended  upon  the 
testimony  of  a  witness  competent  in  one  place  and  incompetent  in  the 
other.  The  instructions  given  at  the  trial  upon  this  point  did  not 
conform  to  the  view  of  tlie  law  above  stated,  in  which,  upon  more  full 
consideration,  we  all  concur.  Exceptions  sustained.^ 

1  Ace.  Johnson   v.  C.  &  N.  W.  Ry.,  91    la.  248,  59  N.  W.  66.     Contra,  Teueoni  v. 
Terzaghi  (Turin  Cass.  7  July,  1887),  15  Clunet,  426.     Lord  Brougham  in  Bain  v. 


CHAP,    v.]  PECK    I'.   MAYO. 


285 


PECK  V.  MAYO. 
Supreme   Court,    Vermoxt.     1842. 

[Rejjorted  14  Vermont,  33.] 

Redfield,  J.^  This  action  is  upon  a  promissory  note,  made  in  Mon- 
treal, where  the  legal  rate  of  interest  is  six  per  cent,  payable  at  the  M.  & 
F.'s  bank,  in  the  city  of  Albany,  where  the  legal  rate  of  interest  is 
seven  per  cent,  and  indorsed  by  tjie  defendants  in  this  State,  wliere 
the  legal  rate  of  interest  is  six  per  cent.  This  action  being  against  the 
defendants,  as  indorsers,  the  only  question  is,  what  rate  of  interest  are 
they  liable  for?  The  note  was  payable  at  a  day  certain,  but  no  interest 
stipulated  in  the  contract.  The  interest  claimed  is  for  damages  in 
not  paying  the  money  when  due. 

The  first  question  naturally  arising  in  this  case  is,  what  rate  of  inter- 
est, by  way  of  damages,  are  the  signers  liable  for?  There  are  fewer 
decisions  to  be  found  in  the  books,  bearing  directly  upon  this  subject, 
than  one  would  naturally  have  expected.  It  is  an  elementary  principle, 
upon  this  subject,  that  all  the  incidents  pertaining  to  the  validity  and 
construction,  and  especially  to  the  discharge,  performance,  or  satisfaction 
of  contracts,  and  the  rule  of  damages  for  a  failure  to  perform  such  con- 
tract, will  be  governed  by  the  lex  loci  co)itractus.  This  term,  as  is 
well  remarked  by  Mr.  Justice  Story,  in  his  Conflict  of  Laws,  248,  may 
have  a  double  meaning  or  aspect ;  and  that  it  may  indifferently  indicate 
the  place  where  the  contract  is  actually  made,  or  that  where  it  is  vir- 
tuall}'  made,  according  to  the  intent  of  the  parties,  that  is,ythe  place 
of  performance.  \  The  general  rule  now  is,  I  apprehend,  that  the  latter 
is  the  governinghavv  of  the  contract.  Hence  the  elementary  principle 
undoubtedly  is  that  the  rate  of  interest,  whether  stipulated  in  the  con- 
tract or  given  by  way  of  damages  for  the  non-performance,  is  the  in- 
terest of  the  place  of  payment. 

We  will  next  examine  whether  any  positive  rule  of  law  has  been 
established  contravening  this  principle.  2  Kent  Com.  460,  461.  Chan- 
cellor Kent  expressly  declares  that  this  elementary  principle  is  now  the 
"received   doctrine  at  Westminster   Hall,"    and   cites   Thompson   v. 

Whitehaven,  &c.  Ry.,  3  H.  L.  C.  1,  19,  said  :  "The  law  of  evidence  is  the  lex  fori 
which  governs  the  courts.  Whether  a  witness  is  competent  or  not ;  whether  a  certain 
matter  requires  to  be  proved  by  writing  or  not ;  whether  certain  evidence  proves  a  cer- 
tain fact  or  not  :  This  is  to  be  determined  by  the  law  of  the  country  where  the  question 
arises,  where  the  remedy  is  sought  to  be  enforced,  and  where  the  court  sits  to  enforce 
it." 

So  if  a  stamp  is  required  for  admitting  any  document  in  evidence,  even  a  foreign 
document  must  be  stamped  before  it  will  be  admitted  ;  while  a  document  valid  but  in- 
admissible, under  this  rule,  where  made,  may  be  admitted  in  another  State  not  requir- 
ing a  stamp.  Bristow  v.  Sequeville,  5  Ex.  275  ;  Fant  v.  Miller,  17  Grat.  47  ;  Murdock 
i;.  Roebuck,  1  Juta  (Cape  Colony),  1  ;  Dearsley  v.  Rennels  (Ghent,  7  Dec.  1876), 
6  Clunet,  509.  —  Ed. 
1  Part  of  the  opinion  only  is  given. — Ed. 


286  PECK   V.   MAYO.  [chap.   V. 

Powles,  2  Simons'  R.  194  (2  Cond.  Ch.  R.  378).  This  case  does 
not  necessarily  decide  tliis  point,  but  the  opinion  of  the  Vice  Chancellor 
expressly  recognizes  the  rule,  that,  although  the  rate  of  interest  stipu- 
lated is  above  the  English  interest,  still  the  contract  will  not  be 
usurious,  unless  it  appear  to  be  a  contract  made  in  England  and  there 
to  be  performed.  The  case  of  Harvey  v.  Archbold,  1  Ryan  &  Moody, 
184  (21  Eng.  C.  L.  729),  recognizes  more  expressly  the  same  doctrine. 
The  case  of  Depau  v.  Humphreys,  8  Martin,  1,  expressly  decides,  that 
a  contract  made  in  one  country,  to  be  performed  in  another,  where  the 
rate  of  interest  is  higher  than  at  the  place  of  entering  into  the  contract, 
it  may  stipulate  the  higher  rate  of  interest.  Mr.  Justice  Story  recog- 
nizes the  elementarv  rule,  above  alluded  to,  as  the  settled  law.  Con- 
flict of  Laws,  243,  246.  Similar  language  is  adopted  b}-  Mr.  Justice 
Thompson,  Boyce  v.  Edwards,  4  Peters'  R.  Ill,  and  by  Mr.  Chief 
Justice  Taney,  in  Andrews  v.  Pond,  13  Peters,  65,  and  by  Chancellor 
Walworth,  in  Hosford  v.  Nichols,  1  Paige,  220.  Much  the  same  is 
said  by  the  court  in  the-  case  of  the  Bank  of  the  U.  S.  v.  Daniel,  12 
Peters,  32.  In  many  of  these  cases  the  question  alluded  to  was  not 
directly  before  the  court,  but,  by  all  these  eminent  jurists,  it  seems  to 
have  been  considered  as  one  of  the  long  settled  principles  of  the  law  of 
contract.  The  same  rule  of  damages  was,  in  the  case  of  Ekins  ?'.  the 
East  India  Company,  1  P.  Wms.  395,  applied  to  the  tortious  conversion 
of  a  ship  in  Calcutta,  the  court  making  the  company  liable  for  the  value 
of  the  ship,  at  the  time  of  conversion,  and  the  India  rate  of  interest 
for  the  delay  of  the  payment  of  the  money.  In  this  case  the  interest 
allowed  was  greater  than  the  English  interest. 

^When  the  contract  is  entered  into  in  one  country,  to  be  performed  in 
another,  having  established  a  lower  rate  of  interest  than  the  former, 
and  the  contract  stipulates  interest  generally,  it  has  always  been  held 
that  the  tote  of  interest  recoverable  was  that  of  the  place  of  perform- 
ance onl^'J  It  is  expressly  so  decided  in  Robinson  v.  Bland,  2  Bur- 
row, 1077  ;  Fanning  v.  Consequa,  17  Johns.  511  ;  Schofield  v.  Day,  20 
Johns.  R.  102. 

From  all  which  I  consider  the  following  rules,  in  regard  to  interest  on 
contracts,  made  in  one  country  to  be  executed  in  another,  to  be  well 
settled  :  1.  If  a  contract  be  entered  into  in  one  place  to  be  performed 
in  another,  and  the  rate  of  interest  differ  in  the  two  countries,  the  par- 
ties may  stipulate  for  the  rate  of  interest  of  either  country,  and  thus  by 
their  own  express  contract,  determine  with  reference  to  the  law  of 
which  country  that  incident  of  the  contract  shall  be  decided.  2.  If  the 
contract,  so  entered  into,  stipulate  for  interest  generally,  it  shall  be  the 
rate  of  interest  of  the  place  of  i)ayment,  unless  it  appear  the  par- 
ties intended  to  contract  with  reference  to  the  law  of  the  other  place. 
3.  If  the  contract  be  so  entered  into,  for  mone^-,  payable  at  a  place  on  a 
day  certain,  and  no  interest  be  stipulated,  and  payment  be  delayed, 
interest,  by  way  of  dam.nges,  shall  be  allowed  according  to  the  law  of 
the  place  of  payment,  where  the  money  may  be  supposed  to  have  been 


CHAP,    v.]  AYER   V.    TILDEN.  287 

required  hy  the  creditor  for  use,  and  where  he  might  be  supposed  to 
have  borrowed  money  to  supply  the  deficiency  thus  occurring,  and  to 
liave  paid  the  rate  of  interest  of  that  country.  Tliis  is  expressly  recog- 
nized as  the  settled  rule  of  law,  in  regard  to  the  acceptor  of  a  bill, 
who  stands  in  the  place  of  the  maker  of  these  notes.  3  Kent's 
Com.  116.^ 


AYER   V.   TILDEN. 
Supreme  Judicial  Court  of  Massachusetts.     1860. 

[Reported  15  Gray,  178.] 

Action  of  contract  upon  this  promissory  note,  made  and  indorsed 
by  the  defendants:  "$670.81.  New  Lebanon,  20th  June,  1857.  Six 
months  after  date  we  promise  to  pay  to  the  order  of  ourselves  six 
hundred  and  seventy  dollars  and  eighty-one  cents,  value  received,  at 
Bank  of  America,  n"  Y.     Tilden  &  Co." 

The  parties  stated  the  following  case,  upon  which  the  Superior  Court 
in  Middlesex  gave  judgment  for  the  defendants,  and  the  plaintiffs 
appealed.^ 

Hoar,  J.  The  plaintiffs  are  entitled  to  recover,  according  to  the 
agreement  of  parties,  the  principal  of  the  note,  with  interest  at  such  a 
rate  as  the  law  will  allow.  That  rate  will  be  six  per  cent  from  the 
maturit}'  of  the  note.  The  interest  is  not  a  sum  due  b}'  the  contract, 
for  by  the  contract  no  interest  was  payable,  and  is  not  therefore 
affected  by  the  law  of  the  place  of  contract.  It  is  given  as  damages 
for  the  breach  of  contract,  and  must  follow  the  rule  in  force  within  the 
jurisdiction  where  the  judgment  is  recovered.  Grimshaw  v.  Bender, 
6  Mass.  157  ;  Eaton  v.  Melius,  7  Gray,  566  ;  Barringer  v.  King,  5 
Gray,  12.  The  contrary  rule  has  been  held  to  be  applicable  where  there 
was  an  express  or  implied  agreement  to  pay  interest.  Winthrop  v. 
Carleton,  12  Mass.  4;  Von  Hemert  v.  Porter,  11  Met.  220;  Lanusse 
V.  Barker,  3  Wheat.  147. 

Perhaps  it  would  be  difficult  to  support  the  decision  in  Winthrop  v. 
Carleton  upon  an}-  sound  principle  ;  because  ihe  court  in  that  case 
held  that  interest  could  only  be  computed  from  the  date  of  the  writ, 
thus  clearly  showing  that  it  was  not  considered  as  due  b}-  the  contract, 
and  3'et  adopted  the  rate  of  interest  allowed  at  the  place  of  the  contract. 
But  the  error  would  seem  to  be  in  not  treating  mone}-,  paid  at  the 
implied  request  of  another,  as  entitled  to  draw  interest  from  the  time 
of  payment. 

1  Ace.  Gibbs  v.  Fremont,  9  Ex.  25;  Ex  parte  Heidelbaek,  2  Low.  526:  Ballistev  v. 
Hamilton,  3  La.  Ann.  401;  Fanning  v.  Conseqna,  17  Johns.  511 ;  Raymond  v.  Messiel 
(French  Cass.  9  June,  1880),  7  Clunet,  394.— Ed. 

2  Only  so  much  of  the  case  as  deals  with  the  rate  of  interest  is  given.  —  Ed. 


288  COMMERCIAL    NATIONAL   BANK   V.   DAVIDSON.        [CHAP.   V. 

An  objection  to  adopting  the  rule  of  the  rate  of  interest  in  the  juris- 
diction wliere  the  action  is  brought  as  the  measure  of  damages  may  be 
wortliy  of  notice,  that  this  rule  would  allow  the  creditor  to  wait  until 
he  could  find  his  debtor  or  his  property  within  a  jurisdiction  where  a 
much  higher  rate  of  interest  was  allowed  than  at  the  place  of  the  con- 
tract. But  a  debtor  could  always  avoid  this  danger  by  performing  his 
contract ;  and  the  same  difficulty  exists  in  relation  to  the  actions  of 
trover  and  replevin. 

If  such  a  case  should  arise,  it  might  with  more  reason  be  argued  that 
the  damages  should  not  be  allowed  to  exceed  those  which  would  have 
been  recovered  in  the  State  where  the  contract  was  made  and  to  be 
performed.^ 


COMMERCIAL   NATIONAL  BANK  v.   DAVIDSON. 

Supreme  Court  of  Oregon.     1889. 

[Reported  18  Oregon,  57.] 

Thayer,  C.  J.^  ...  It  is  stipulated  in  the  note  to  the  effect  that  if 
it  is  not  paid  at  maturity  the  makers  will  pay  ten  per  cent  additional  as 
costs  of  collection.  ...  It  is  my  opinion  that  a  clause  in  a  promissory 
note,  in  the  form  of  the  stipulation  in  question,  is  not  valid,  and  should 
not  be  enforced.   .  .   . 

Counsel  for  the  respondent  insists  that  the  stipulation  to  pa}'  the 
additional  sum  contained  in  the  note  in  suit  was  valid  and  binding  in 
the  Territor}'  where  the  note  was  executed,  and  that  therefore  it  should 
be  upheld  in  this  State.  As  a  general  rule,  the  law  of  the  place  where 
contracts  merely  personal  are  made,  governs  as  to  their  nature,  obli- 
gation, and  construction.  But  I  do  not  think  that  rule  applies  to  an 
agreement,  the  obligation  of  which  does  not  arise  until  a  renied}'  is 
sought  upon  the  contract,  to  which  it  is  ou\y  auxiliary.  In  regard  to 
such  agreements,  the  law  of  the  place  where  the}-  are  attempted  to  be 

1  See  Kopelke  v.  Kopelke,  112  Ind.  43.5. 

In  Meyer  v.  Estes,  164  Mass.  457,  465,  Field,  C.  J.,  said  :  "In  determining  the 
measure  of  damages  the  first  (juestion  is  whether  the  contract  is  to  be  governed  by  the 
law  of  Massachusetts  or  by  the  law  of  the  kingdom  of  Saxony.  We  think  that  it  is 
to  be  governed  by  the  law  of  Massachusetts.  The  contract  was  signed  in  Massachusetts 
and  sent  to  the  plaintiff  at  Leipzig,  Saxony  ;  it  did  not  become  a  contract  until  the 
plaintiff  acce])ted  it  and  notified  the  defendants  of  such  acceptance,  wliich  he  did  by 
telegram  .si'Ut  to  them  at  Hoston.  Lewis  v.  Browning,  130  Mass.  173  ;  Pine  v.  Smith, 
11  Gray,  38  ;  Hill  v.  Chase,  143  Mass.  129.  The  contract  relates  to  what  is  to  be  done 
by  the  defendants  in  the  United  States  of  America  ;  the  defendants  are  described  as 
'of  Boston,  Mass.,  U.  S.  A.,'  and  the  date  of  the  contract  is  Boston.  We  think 
that  it  must  be  regarded  as  a  contract  to  be  performed  in  Massachusetts,  and  that  the 
law  of  Massachusetts,  which  is  also  the  law  of  the  forum,  must  determine  the  damages 
to  be  recovered  in  the  action."  —  Ed. 

*  Only  so  much  of  the  opinion  as  deals  with  the  question  of  costs  is  given.  —  Ed. 


CHAP,   v.]      COMMERCIAL    NATIONAL    BANK   V.   DAVIDSON.  289 

enforced,  I  should  suppose,  would  prevail.  This  agreement  was  to  pay 
the  additional  percentage  as  costs  for  collection  of  the  note,  and  if  the 
courts  where  the  note  was  executed  would  have  enforced  the  agree- 
ment, it  does  not  follow  that  the  courts  of  another  jurisdiction  are 
bound  to  do  so.  The  effect  of  the  agreement  was  to  provide  for  an 
increase  of  costs,  which  are  onl^-  incidental  to  the  judgment,  and  the 
allowance  of  which  must  necessarily  depend  upon  the  law  of  the  forum. 
A  stipulation  in  a  note  made  in  Utah  Territory,  providing  that  in  an 
action  on  the  note  the  plaintiff,  in  case  of  a  recover}',  should  be  entitled 
to  double  costs,  might  be  considered  valid  under  the  laws  of  that  Ter- 
ritory, and  enforceable  in  its  courts  ;  but  that  certainly  would  not  ren- 
der it  incumbent  upon  the  courts  of  this  State,  in  an  action  upon  such 
note,  to  award  double  costs. ^ 

1  Ace.  Security  Co.  v.  Eyer,  36  Neb.  507,  54  N.  W.  838,  —  Ed. 


19 


290  MALE   V.    ROBERTS.  [CHAP.  VL 

PART   III.  —  The  Creation  of  Rights. 


CHAPTER  VI. —  Personal  Eights. 


SECTION  I.  —  Capacity. 


MALE  V.  ROBERTS. 
Nisi  Prius,  in  the  Commox  Pleas.  1800. 

[Reported  3  'Espinas.ie,  163.] 

Assumpsit  for  mone}-  paid,  laid  out,  and  expended,  to  the  use  of  the 
defendant ;  money  lent  and  advanced,  with  the  other  common  money 
counts. 

Plea  of  the  general  issue. 

The  case,  as  opened  by  the  plaintiff's  counsel,  was,  that  the  plaintiff 
and  the  defendant  were  performers  at  the  Royal  Circus.  While  the 
compan}'  were  performing  at  Edinburgh,  in  Scotland,  the  defendant 
had  become  indebted  to  one  Cockburn,  for  liquors  of  different  sorts, 
with  which  Cockburn  had  furnished  him  ;  not  having  discharged  the 
debt,  and  it  being  suspected  that  the  defendant  was  about  to  leave 
Scotland,  Cockburn  arrested  him,  by  what  is  there  termed  a  Writ  of 
Fuge,  the  object  of  which  is  to  prevent  the  debtor  from  absconding. 

The  defendant  being  then  unable  to  pay  the  raone}',  the  plaintiff  paid 
it  for  him  ;  and  he  was  liberated.  The  present  action  was  brought  to 
recover  the  mone}'  so  paid,  as  money  paid  to  his  use. 

The  defence  relied  upon  was,  that  the  defendant  was  an  infant  when 
the  money  was  so  advanced. 

Lord  Eldox.  It  appears  from  the  evidence  in  this  cause,  that  the 
cause  of  action  arose  in  Scotland  ;  the  contract  must  be  therefore 
governed  by  the  laws  of  that  country-  where  the  contract  arises. 
Would  infancy  be  a  good  defence  by  the  law  of  Scotland,  had  the 
action  been  commenced  there? 

Be.^t,  Sergeant,  for  the  defendant,  contended,  that  the  contract  was 
to  be  governed  by  the  laws  of  England  ;  in  which  case,  the  plaintiff 
could  recover  for  necessaries  only.  That  at  all  events  it  should  not 
be  presumed  that  the  laws  were  different ;  and  as  it  appeared  that 
the  debt  did  not  accrue  for  necessaries,  the  plaintiff  could  neither 
recover  on  the  counts  for  mone}-  paid,  or  for  money  lent  to  an 
infant. 

Lord  Eldon.  What  the  law  of  Scotland  is  with  respect  to  the  right 
of  recovering  against  an  infant  for  necessaries,  I  cannot  say  ;  but  if 
the  law  of  Scotland  is,  that  such  a  contract  as  the  present  could  not  be 
enforced  against  an  infant,  that  should  have  been  given  in  evidence; 
and  I  hold  myself  not  warranted  in  saying  that  such  a  contract  is  void 
by  tlio  law  of  Scotland,  because  it  is  void  by  the  law  of  England.     The 


SECT.  I.]  COOPER  V.   COOPER.  291 

law  of  the  countiy  where  the  contract  arose,  must  govern  the  contract ; 
and  what  that  law  is,  should  be  given  in  evidence  to  me  as  a  fact.  No 
such  evidence  has  been  given  ;  and  I  cannot  take  the  fact  of  what  that 
law  is,  without  evidence. 

The  plaintiflF  failed  in  proving  his  case,  and  was  nonsuited.^ 


COOPER  V.  COOPER. 

House  of  Lords  (Scotch  Appeal).    1888. 

[Reported  13  Appeal  Cases,  88.] 

LoRB  Halsbury,  L.  C.'^  M\'  Lords,  in  this  case  the  appellant,  the 
widow  of  a  domiciled  Scotchman,  seeks  to  set  aside  an  antenuptial 
contract  executed  by  her  on  the  da}'  of  her  marriage. 

A  question  has  been  raised  whether  the  contract  was  not  in  fact 
executed  after  the  celebration  of  the  marriage ;  but,  without  minutely 
considering  the  evidence,  I  am  satisfied  with  the  conclusion  of  the  Lord 
Ordinar}',  that  the  contract  was  executed  before  the  marriage,  a  con- 
clusion which,  indeed,  is  but  feebly  contested  on  the  other  side. 

A  Scottish  widow  is  entitled  to  her  jus  relictm  and  to  her  terce, 
unless  they  have  been  discharged  ;  and  the  appellant  seeks  to  remove 
the  bar  to  these  rights  b}'  setting  aside  the  contract  in  question  which, 
if  unimpeached,  discharges  these  rights. 

My  Lords,  I  think  there  has  been  some  slight  confusion  between  the 
question  what  forum  can  decide  the  controversy  between  the  parties 
and  what  law  that  forum  should  administer  in  deciding  it.  Now  it  is 
admitted  that  the  appellant  was  a  domiciled  Irishwoman  at  the  time  she 
executed  the  instrument  in  question.  It  is  admitted  she  was  a  minor ; 
and  apart  altogether  from  the  remedy  peculiar  to  Scottish  jurisprudence 
of  setting  aside  a  contract  which  operates  to  the  enorm  lesion  of  a 
minor,  a  question  to  be  determined  in  a  great  measure  by  the  position 
of  the  parties  and  the  provisions  of  the  contract  itself,  the  first  question 
arises  here  whether  a  domiciled  Irishwoman  could  bind  herself  at  all, 
while  a  minor,  by  a  contract  executed  in  Ireland. 

There  can  be  no  doubt  as  to  what  would  be  the  rule  of  English  law 
in  this  respect.  The  line  of  cases  which  were  brought  to  your  Lord- 
ships' attention  upon  the  subject  of  provisions  whereby  the  common- 
law  right  of  dower  was  extinguished  seem  to  me  beside  any  question  in 
this  case.  The  statute  created  the  power  of  extinguishing  the  right  to 
dower,  and  Courts  of  Equity  have  from  time  to  time  considered  and 

1  Ace.  U.  S.  V.  Garlinghouse,  4  Ben.  194  (semble) ;  Appeal  of  Huey,  1  Grant  Cas. 
51.  See  Thompson  r.  Ketcham,  8  .Johns.  190;  where  it  was  assumi^d  that  the  law  of 
the  place  of  contracting  governed,  but  in  the  absence  of  evidence  that  defendant  waa 
by  that  law  incapable  the  plaintiff  recovered.  — Ed. 

'■^  Parts  of  the  opinions  only  are  given. —  Ed. 


292  COOPER  V.  COOPER.  [chap.  vi. 

acted  upon  their  view  how  far  the  provision  for  the  wife  has  complied 
with  the  conditions  of  the  statute  ;  but  such  cases  have  no  relation  to 
the  question  of  a  minor's  capacity  by  his  or  her  act  to  part  with  rights 
with  which  the  law  would  otherwise  invest  them.  \^None  of  these  cases 
relate  to  the  question  of  incapacity  to  contract  by  reason  of  minority, 
and  the  capacity  to  contract  is  regulated  by  the  law  of  domicihi  Story 
has  with  his  usual  precision  laid  down  the  rule  (Conflict  of  Laws,  §  G4) 
that  if  a  person  is  under  an  incapacity  to  do  any  act  by  the  law  of  his 
domicil,  the  act  when  done  there  will  be  governed  by  the  same  law 
wherever  its  validity  maj"  come  into  contestation  with  any  other 
country  :  quando  lex  in  personam  dirigitur  respiciendum  est  ad  leges 
illius  civitatis  qua  personam  habet  subjectam. 

There  is  an  unusual  concurrence  in  this  view  amongst  the  writers  on 
international  law :  qua  state  minor  contrahere  possit  et  ejusmodi 
respicere  oportet  ad  legem,  cujusque  domicilii:  Burgundus,  Tract  2, 
n.  6.  C'est  ainsi  que  la  majorite  et  la  minorite  du  domicile  out  lieu  par- 
tout  meme  pour  les  biens  situes  ailleurs  :  1  Boullenois,  Princip.  Gen.  6. 
Quotiescunque  de  habilitate  aut  de  inhabilitate  personarum  quaeratur, 
toties  domiciUi  leges  et  statuta  spectanda :  D'Argentre.  So  also  J. 
Voet :  Quoties  in  qusestione,  an  quis  minor  vel  majorennis  sit,  obtinuit, 
id  dijudicandum  esse  ex  lege  domicilii ;  sit  ut  in  loco  domicilii  minor- 
ennis,  ubique  terrarum  pro  tali  habendus  sit,  et  contra. 

It  is  said  that  the  familiar  exception  of  the  place  where  the  contract 
is  to  be  performed  prevents  the  application  of  the  general  rule,  and 
that  as  both  parties  contemplated  a  Scottish  married  life,  and  as  a  con- 
sequence a  Scottish  domicil,  the  principle  I  have  spoken  of  does  not 
regulate  the  contract  relations  of  these  two  persons.  I  think  two 
answers  may  be  given  to  this  contention.  In  the  first  place,  I  think  it 
is  a  misapplication  of  the  principle  upon  which  the  exception  is  founded. 
Here  there  is  no  contractual  obligation  to  make  Scotland  the  domicil, 
nor  is  there  any  part  of  the  contract  which  could  not  and  ought  not  to 
receive  complete  fulfilment  even  if  (contrary  to  what  I  admit  was  the 
contemplation  of  both  the  parties)  the  place  of  married  life  should 
remain  in  Ireland  as  if  they  had  emigrated  altogether  and  gone  to  some 
other  country. 

But  another  and  a  more  overwhelming  answer  is  to  be  found  in  this, 
that  the  argument  assumes  a  binding  contract,  and  if  one  of  the  parties 
was  under  incapacity  the  whole  foundation  of  the  argument  fails.  .  .  . 

Lord  Watson.  ■.  .  .  Whether  the  capacity  of  a  minor  to  bind  himself 
by  personal  contract  ought  to  be  determined  by  the  law  of  his  domicil, 
or  by  the  lex  loci  contractus,  has  been  a  fertile  subject  of  controversy. 
In  the  present  case  it  is  unnecessary  to  decide  the  point,  because  Ire- 
land was  the  country  of  the  appellant's  domicil,  and  also  the  place 
where  the  contract  was  made.  It  was  argued,  however,  for  the  re- 
spondents, that  the  appellant's  objection  to  the  contract,  although  it 
rests  upon  her  alleged  incapacity  to  give  consent,  must  be  decided  by 
the  law  of  Scotland,  as  the  lex  loci  solKlionis.     I  am  by  no  means 


SECT.  I.]  'MILLIKEX    V.    PRATT.  293 

satisfied  that  Scotland  was,  in  tlie  proper  sense  of  the  phrase,  the  place 
of  performance  of  the  contract.  The  spouses  no  doubt  intended  to 
reside  in  Scotland,  but  they  must  also  have  intended  that  the  contract 
should  remain  in  force  and  be  performed  in  any  other  country  where 
they  might,  from  choice  or  necessity-,  take  up  their  abode.  Apart  from 
that  consideration,  and  assuming  Scotland  to  have  been,  in  the  strictest 
sense  of  the  term,  the  locus  solutionis,  I  think  the  argument  of  the 
respondents  is  untenable.  The  principle  of  international  private  law, 
which  makes,  in  certain  cases,  the  law  of  the  place  where  it  is  to  be 
performed  the  legal  test  of  the  validit}-  of  a  contract,  rests,  in  the  first 
place,  upon  the  assumption  that  the  parties  were,  at  the  time  when 
they  contracted,  both  capable  of  giving  an  effectual  consent ;  and,  in 
the  second  place,  upon  an  inference  derived  from  the  terms  of  the 
document,  or  from  the  circumstances  of  the  case,  that  they  mutually 
agreed  to  be  bound  by  the  lex  loci  solutionis  in  all  questions  touching 
its  validit}-.  That  principle  can,  in  my  opinion,  have  no  application  to 
a  case  in  which,  at  the  time  when  the}'  professed  to  contract,  one  of  the 
parties  was,  according  to  the  law  of  that  party's  domicil  and  also  of 
the  place  of  contracting,  incapable  of  giving  consent.  ...  , 

Lord  Macnaghten.  ...  It  has  been  doubted  whether  the  personal 
competency  or  incompetency  of  an  individual  to  contract  depends  on 
the  law  of  the  place  where  the  contract  is  made  or  on  the  law  of  the 
place  where  the  contracting  part}'  is  domiciled.  Perhaps  in  this 
country  the  question  is  not  finally  settled,  though  the  preponderance 
of  opinion  here  as  well  as  abroad  seems  to  be  in  favor  of  the  law  of 
the  domicil.  It  may  be  that  all  cases  are  not  to  be  governed  by 
one  and  the  same  rule.  But  when  the  contract  is  made  in  the  place 
where  the  person  whose  capacity  is  in  question  is  domiciled  there  can 
be  no  room  for  dispute.  It  is  difficult  to  suppose  that  Mrs.  Cooper 
could  confer  capacity  on  herself  by  contemplating  a  different  country 
as  the  place  where  the  contract  was  to  be  fulfilled,  if  that  be  the  proper 
expression,  or  by  contracting  in  view  of  an  alteration  of  personal  status 
which  would  bring  with  it  a  change  of  domicil.  .  .  . 

'     Aj)peal  allowed.^ 


MILLIKEN  V.  PRATT. 
StrpREME  Judicial  Court  of  Massachusetts.     1878. 
[Reported  125  Massachusetts,  374.] 

Contract  to  recover  $500  and  interest  from  January  6,  1872.  Writ 
dated  June  30,  1875.  The  case  was  submitted  to  the  Superior  Court 
on  agreed  facts,  in  substance  as  follows : 

The  plaintiffs  are  partners  doing  business  in  Portland,  Maine,  under 

1  See  In  re  Cooke's  Trusts,  56  L.  J.  Ch.  637.  —  Ed. 


294  MILLIKEN    V.    PRATT.  [CHAP.  VI 

the  firm  name  of  Deering,  Milliken  &,  Co.  The  defendant  is,  and  has 
been  since  1850,  the  wife  of  Daniel  Pratt,  and  both  have  always 
resided  in  Massachusetts.  In  1870,  Daniel,  who  was  then  doing  busi- 
ness in  Massachusetts,  applied  to  the  plaintiffs  at  Portland  for  credit, 
and  they  required  of  him,  as  a  condition  of  granting  the  same,  a  guar- 
anty from  the  defendant  to  the  amount  of  five  hundred  dollars,  and 
accordingly  he  procured  from  his  wife  the  following  instrument: 

'•  Portland,  January  29,  1870.  In  consideration  of  one  dollar  paid 
by  Deering,  Milliken  &  Co ,  receipt  of  whicli  is  hereby  acknowledged,  I 
guarantee  the  payment  to  them  by  Daniel  Pratt  of  the  sum  of  five 
hundred  dollars,  from  time  to  time  as  he  may  want  —  this  to  be  a  con- 
tinuing guaranty.     Sarah  A.  Pratt." 

This  instrument  was  executed  by  the  defendant  two  or  three  days 
after  its  date,  at  her  home  in  Massachusetts,  and  there  delivered  by 
her  to  her  husband,  who  sent  it  by  mail  from  Massachusetts  to  the 
plaintiffs  in  Portland  ;  and  the  plaintiffs  received  it  from  the  post- 
ofiice  in  Portland  early  in  February,  1870. 

The  plaintiffs  subsequently  sold  and  delivered  goods  to  Daniel  from 
time  to  time  until  October  7,  1871,  and  charged  tlie  same  to  him,  and, 
if  competent,  it  may  be  taken  to  be  true,  that  in  so  doing  they  relied 
upon  the  guaranty.  Between  February,  1870,  and  September  1,  1871, 
they  sold  and  delivered  goods  to  him  on  credit  to  an  amount  largely 
exceeding  $500,  which  were  fully  settled  and  paid  for  by  him.  This 
action  is  brought  for  goods  sold  from  September  1,  1871,  to  October  7, 
1871,  inclusive,  amounting  to  $860.12,  upon  which  Ive  paid  $300,  leav- 
ing a  balance  due  of  $560.12.  The  one  dollar  mentioned  in  the  guar- 
anty was  not  paid,  and  the  only  consideration  moving  to  tlie  defendant 
therefor  was  the  giving  of  credit  by  the  plaintiffs  to  her  husband. 
Some  of  the  goods  were  selected  personally  by  Daniel  at  the  plaintiffs' 
store  in  Portland,  others  were  ordered  by  letters  mailed  by  Daniel  from 
Massachusetts  to  the  plaintiffs  at  Portland,  and  all  were  sent  by  the 
plaintiffs  b}'  express  from  Portland  to  Daniel  in  Massachusetts,  who 
paid  all  express  charges.     The  parties  were  cognizant  of  the  facts. 

By  a  statute  of  Maine,  duly  enacted  and  approved  in  1866,  it  is 
enacted  that  ''  the  contracts  of  any  married  woman,  made  for  any  law- 
ful purpose,  shall  be  valid  and  binding,  and  may  be  enforced  in  the 
same  manner  as  if  she  were  sole."  The  statutes  and  the  decisions  of 
the  court  of  Maine  may  be  referred  to. 

Payment  was  duly  demanded  of  the  defendant  before  the  date  of  the 
writ,  and  was  refused  by  her. 

The  Superior  Court  ordered  judgment  for  the  defendant ;  and  the 
jjlaintiffs  appealed  to  this  court. 

Gray,  C.  J.  The  general  rule  is  that  the  validity  of  a  contract  is  to 
be  determini'd  l)y  the  law  of  the  State  in  which  it  is  made  ;  if  it  is  valid 
there,  it  is  deemed  valid  everywhere,  and  will  sustain  an  action  in  the 
courts  of  a  State  wiiose  laws  do  not  permit  such  a  contract.  Scudder 
V.  Union  National  Bank,  91   U.  S.  406.     Even  a  contract  expressly 


SECT.   I.]  MILLIKEN   V.   PRATT.  295 

prohibited  b}-  the  statutes  of  the  State  in  which  the  suit  is  brought,  if 
not  in  itself  immoral,  is  not  necessarily  nor  usually  deemed  so  invalid 
that  the  comit}-  of  the  State,  as  administered  by  its  courts,  will  refuse 
to  entertain  an  action  on  such  a  contract  made  by  one  of  its  own 
citizens  abroad  in  a  State  the  laws  of  which  permit  it.  Greenwood  v. 
Curtis,  6  Mass.  358  ;  M'Intyre  v.  Parks,  3  Met.  207. 

If  the  contract  is  completed  in  another  State,  it  makes  no  difference 
in  principle  whether  the  citizen  of  this  State  goes  in  person,  or  sends 
an  agent,  or  writes  a  letter,  across  the  boundary  line  between  the  two 
States.  As  was  said  by  Lord  Lyndhurst,  "If  I,  residing  in  England, 
send  down  my  agent  to  Scotland,  and  he  makes  contracts  for  me  there, 
it  is  the  same  as  if  I  myself  went  there  and  made  them."  Pattison  v. 
Mills,  1  Dow  &  CI.  342,  363.  So  if  a  person  residing  in  this  State 
signs  and  transmits,  either  by  a  messenger  or  through  the  post-office, 
to  a  person  in  another  State,  a  written  contract,  which  requires  no 
special  forms  or  solemnities  in  its  execution,  and  no  signature  of  the 
person  to  whom  it  is  addressed,  and  is  assented  to  and  acted  on  by  him 
there,  the  contract  is  made  there,  just  as  if  the  writer  personall}-  took 
the  executed  contract  into  the  other  State,  or  wrote  and  signed  it 
there  ;  and  it  is  no  objection  to  the  maintenance  of  an  action  thereon 
here,  that  such  a  contract  is  prohibited  b}'  the  law  of  this  Common- 
wealth.    M'Intyre  c.   Parks,  above  cited. 

The  guaranty,  beni'iiig  i|ate  of  Portland,  in  the  Staij&-&L-Maine.  xgafr-^^ 
pvpfiitpd  hy  thp  rjpffnilnnti  n  ninrri"'!  "^"mnn,  hnving  hpr  home  in  thig 
Commouwealtb,  p^  pf>llntprnl  ^ppnHry  for  the  liability  of  her  husbaajd. 

fur   g;oods   sold   by  the.   pln.int.ifPs;   to    him,  nnd  wns  spnf.   hy  lipr   thmnoh 

him    by  jnnil    to  tllf  pl^intifft^   it  Pni-t-lmrh — Thu  salbo  uf   Ihu  goodau 
ordered  by  him  from  the  plnintiffs  at  Poi-tlnml.  and  there  delivered  bv_^ 

■  them  to  him    in    pei'i'"^"i   '^''  ^^  •^   P^i-ripr  fftr  bim     wPi-P    rrnrln  in  thia  S;fntP 

r>r  )\[;iina.     Orcutt  V.  Nelson,  1  Gray,  536  ;  Kline  v.  Baker,  99  Mass. 

253.        The   COnf''^^'^   hpfvvPPn    l-.hp    <1pfftnr]r.r.l^    <^^^]   thp    [)]n,i]ltiffa   woa   or.m- 

^  plcte  when  the  giini-n.ntij-  Imr!  >-"^'^"  vr.nr>;,rppj  ^,^(\  acted  on  by  t.hpm^a4^ 
Portland,  and    not   before.     Jorilan    v.   Dobbins,  122  Mass.   168.    _Lt 
must  therefore  be  treated  as  made  and  to  be  performed  in  the  State  of 
Maine.  ^ 

The  law  of  Maine  authorized  a  married  woman  to  bind  herself  by 
any^ntract  as  if  she  were  unmarried.  St.  of  Maine. nf  1866,  r  fii^) 
Mayo  V.  Hutchinson,  57  Elaine,  546.  ^The  law  of  Massachusetts,  as 

then   existing,  did    not   allow  her   t*^    pntpr   into   n    ponl-mpt  ^g    gnrpty  f>r_ 

for  the  accommodation  of  her  husband  or  of  any  third  pejigon.  Gen. 
Sts.  c.  108,  §  3 ;  Nourse  v.  Henshaw,  123  Mass.  96.  Since  the  mak- 
ing of  the  contract  sued  on,  and  before  the  bringing  of  this  action,  the 
law  of  this  Commonwealth  has  been  changed,  so  as  to  enable  married 
women  to  make  such  contracts.  St.  1874,  c.  184  ;  Major  v.  Holmes, 
124  Mass.  108  ;  Kenworthy  v.  Sawyer,  125  Mass.  28. 

The  question  therefore  is,  whether  a  contract  made  in  another  State 
by  a  married  woman  domiciled  here,  which  a  married  woman  was  not 


296  MILLIKEN   V.   PRATT.  [CHAP.  VI. 

at  the  time  capable  of  making  under  the  law  of  this  Commonwealth,  /l/^  • 
but  was  then  allowed  by  the  law  of  that  State  to  make,  and  which  she  /^ 
could  now  lawfully  make  in  this  Commonwealth,  will  sustain  an  action 
against  her  in  our  courts. 

It  has  been  often  stated  by  commentators  that  the  law  of  the/^ 
domicil,  regulating  the  capacity  of  a  person,  accompanies  and  governs 
the  person  everywhere.  But  this  statement,  in  modern  times  at  least, 
is  subject  to  many  qualifications  ;  and  the  opinions  of  foreign  jurist3 
upon  the  subject,  the  principal  of  which  are  collected  in  the  treatises  of 
Mr.  Justice  Story  and  of  Dr.  Francis  Wharton  on  the  Conflict  of 
Laws,  are  too  varying  and  contradictory  to  control  the  general  current 
of  the  English  and  American  authorities  in  favor  of  holding  that 
a  contract,  which  by  the  law  of  the  place  is  recognized  as  lawfully 
made  by  a  capable  person,  is  valid  everywhere,  although  the  person 
would  not,  under  the  law  of  his  domicil,  be  deemed  capable  of  mak- 
ing it.^ 

Mr.  Westlake,  who  wrote  in  1858,  after  citing  the  decision  of  Lord 
Eldon,^  well  observed,  "That  there  is  not  more  authority  on  the  sub- 
ject may  be  referred  to  its  not  having  been  questioned  ; "  and  summed 
up  the  law  of  England  thus  :  "  While  the  English  law  remains  as  it  is, 
it  must,  on  principle,  be  taken  as  exceeding,  in  the  case  of  transac- 
tions having  their  seat  here,  not  only  a  foreign  age  of  majority,  but 
also  all  foreign  determination  of  status  or  capacity,  whether  made 
by  law  or  by  judicial  act,  since  no  diflEerence  can  be  established 
between  the  cases,  nor  does  any  exist  on  the  continent."  "The  va- 
lidity of  a  contract  made  out  of  England,  with  regard  to  the  personal 
capacity  of  the  contractor,  will  be  referred  in  our  courts  to  the  lex 
loci  contractus  ;  that  is,  not  to  its  particular  provisions  on  the  capacity 
of  its  domiciled  subjects,  but  in  this  sense,  that,  if  good  where  made, 
the  contract  will  be  held  good  here,  and  conversely."  Westlake's 
Private  International  Law,  §§  401,  402,  404.8 

In   Greenwood   v.   Curtis,    Chief  Justice   Parsons   said,    "  By   the  /^ 
common  law,  upon  principles  of  national  comity,  a  contract  made  in 
a  foreign  place,  and  to  be  there  executed,  if  valid  by  the  laws  of  that 
place,  may  be  a  legitimate  ground  of  action  in  the  courts  of  this  State ; 
although  such  contract  may  not  be  valid  by  our  laws,  or  even  may  be 

1  The  learned  Chief  Justice  here  examined  the  following  cases:  Ex  parte 
Lewis,  1  Ves.  Sen.  298  ;  Morrison's  Case,  Mor.  Diet.  Dec.  4595  ;  Ex  parte  Watkins,  2 
Ves.  Sen.  470;  In  re  Houston,  1  Russ.  312;  Johnstone  v.  Beattie,  10  CI.  and  F.  42; 
Stuart  V.  Bute,  9  II.  L.  C.  440 ;  Nugent  v.  Vetzera,  L.  R.  2  Eq.  704  ;  Woodworth  v. 
Spring,  4  All.  321  ;  Male  v.  Roberts,  3  Esp.  163  ;  Thompson  v.  Ketcham,  8  Johns. 
189.  —  Ed. 

2  Male  V.  Roberts,  supra.  —  Ed. 

8  The  learned  Chief  Justice  here  stated  In  re  Ilellmann's  Will,  L.  R.  2  Eq.  363  ; 
and  criticised  the  following  Louisiana  ca.scs:  Baldwin  v.  Gray,  16  Mart.  192;  Saul 
V.  His  Creditors,  17  Mart.  569;  Andrews  v.  His  Creditors,  11  La.  464;  Le  Breton  v. 
Nouchet,  3  Mart.  60;  Barrcra  v.  Alpuente,  18  .Mart.  69;  Gamier  v.  Poydras,  13  La. 
177  :  Gale  v.  Davis.  4  Mart.  645.  —  Ed. 


SECT.  I.]  MILLIKEN    V.    PEATT.  297 

prohibited  to  our  citizens;  "  and  that  the  Chief  Justice  considered  this/,^- 
rule  as  extending  to  questions  of  capacity  is  evident  from  his  subse- 
quent illustration  of  a  marriage  contracted  abroad  between  persons 
prohibited  to  intermarry-  bj-  the  law  of  their  domicil.  6  Mass.  377- 
379.  The  validit}-  of  such  marriages  (except  in  case  of  polygamy,  or 
of  marriages  incestuous  according  to  the  general  opinion  of  Christen- 
dom) has  been  repeatedly  affirmed  in  this  Commonwealth.  Medway  y. 
Needham,  16  Mass.  157  ;  Sutton  v.  Warren,  10  Met.  451  ;  Common- 
wealth c.  Lane,  113  Mass.  458. 

The  recent  decision  in  Sottoma3'or  v.  De  Barros,  3  P.  D.  1,  bj'  which 
Lords  Justices  James,  Baggallay,  and  Cotton,  without  referring  to  any 
of  the  cases  that  we  have  cited,  and  reversing  the  judgment  of  Sir 
Rol)ert  Phillimore  in  2  P.  D.  81,  held  that  a  marriage  in  England 
between  first  cousins,  Portuguese  subjects,  resident  in  England,  who 
by  the  law  of  Portugal  were  incapable  of  intermarrying  except  by  a 
Papal  dispensation,  was  therefore  null  and  void  in  England,  is  utterly 
opposed  to  our  law ;  and  consequently  the  dictum  of  Lord  Justice 
Cotton,  "  It  is  a  well-recognized  principle  of  law  that  the  question  of 
personal  capacity  to  enter  into  anj'  contract  is  to  be  decided  by  the  law 
of  domicil,"  is  entitled  to  little  weight  here. 

It  is  true  that  there  are  reasons  of  public  policy  for  upholding  the 
validit}'  of  marriages,  that  are  not  applicable  to  ordinarj'  contracts ; 
but  a  greater  disregard  of  the  lex  domicilii  can  hardl}-  be  suggested, 
than  in  the  recognition  of  the  validit}-  of  a  marriage  contracted  in 
another  State,  which  is  not  authorized  bj-  the  law  of  the  domicil,  and 
which  permanentl}'  affects  the  relations  and  the  rights  of  two  citizens 
and  of  others  to  be  born. 

Mr.  Justice  Story,  in  his  Commentaries  on  the  Conflict  of  Laws, 
after  elaborate  consideration  of  the  authorities,  arrives  at  the  conclu- 
sion that  "  in  regard  to  questions  of  minority  or  majorit}-,  competency 
or  incompetency  to  marry,  incapacities  incident  to  coverture,  guardian- 
ship, emancipation,  and  other  personal  qualities  and  disabiUties,  the 
law  of  the  domicil  of  birth,  or  the  law  of  any  other  acquired  and  fixed 
domicil.  is  not  general!}- to  govern,  but  the  lex  loci  contractus  aut  actus, 
the  law  of  the  place  where  the  contract  is  made,  or  the  act  done  ;  "  or 
as  he  elsewhere  sums  it  up,  ^'although  foreign  jurists  crpnomlly  hr>lri. 
that  the  law  of  thn  rlnminil  nuirhx  tr>  g'^^'o'-ti  in  reo-ard  to  the  capacitji-Qf 
persons  \<^  pnnt.mr't  ■  rmf  thn  nnmmnn  Inw  holds  a  different  doctrinc, 

,-,o»-.Qly     fl.nf    <l)p    7^0,.    l^n,-    r.r...f,,r,r^t.,o    jr.    f^p    Q-nyPrn"  StOry    COUfl.    §§    103, 

241.  So  Chancellor  Kent,  although  in  some  passages  of  the  text  of  his 
Commentaries  he  seems  to  incline  to  the  doctrine  of  the  civilians,  yet 
in  the  notes  afterwards  added  unequivocally  concurs  in  the  conclusion 
of  Mr.  Justice  Storv.     2  Kent  Com.  233  note,  458,  459  &  note. 

In  Pearl  v.  Hansborough,  9  Humph.  426,  the  rule  was  carried  so  far 
as  to  hold  that  where  a  married  woman  domiciled  with  her  husband  in 
the  State  of  Mississippi,  by  the  law  of  which  a  purchase  by  a  mar- 
ried woman  was  valid  and  the  property  purchased  went  to  her  separate 


298 


MILLIKEN    V.   PRATT. 


[chap.  VI. 


use,  bought  personal  property  in  Tennessee,  by  the  law  of  which 
married  women  were  incapable  of  contracting,  the  contract  of  purchase 
was  void  and  could  not  be  enforced  in  Tennessee.  Some  authorities, 
on  the  other  hand,  would  uphold  a  contract  made  by  a  party  capable 
by  the  law  of  his  domicil,  though  incapable  by  the  law  of  the  place  of 
the  contract.  In  re  Hellraann's  Will,  and  Saul  v.  His  Creditors, 
above  cited.  But  that  alternative  is  not  here  presented.  In  Hill  v. 
Pine  River  Bank,  45  X.  H.  300,  the  contract  was  made  in  the  State  of 
the  woman's  domicil,  so  that  the  question  before  us  did  not  arise  and 
was  not  considered. 

The  principal  reasons  on  which  continental  jurists  have  maintained 
that  personal  laws  of  the  domicil,  affecting  the  status  and  capacity  of 
all  inhabitants  of  a  particular  class,  bind  them  wherever  they  may  go, 
appear  to  have  been  that  each  State  has  the  rightful  power  of  regula- 
ting tlie  status  and  condition  of  its  subjects,  and,  being  best  acquainted 
with  the  circumstances  of  climate,  race,  character,  manners,  and  cus- 
toms, can  best  judge  at  what  age  young  persons  may  begin  to  act  for 
themselves,  and  whether  and  how  far  married  women  may  act  indepen- 
dently of  their  husbands  :  that  laws  limiting  the  capacity  of  infants  or 
of  married  women  are  intended  for  their  protection,  and  cannot  there- 
fore be  dispensed  with  by  their  agreement ;  that  all  civilized  States 
recognize  the  incapacity  of  infants  and  married  women  ;  and  that  a 
person,  dealing  with  either,  ordinarily  has  notice,  by  the  apparent  age 
or  sex,  that  the  person  is  likely  to  he  of  a  class  whom  tlie  laws  pro- 
tect, and  is  thus  put  upon  inquiry  how  far,  by  the  law  of  the  domicil  of 
the  person,  the  protection  extends. 

On  the  other  hand,  it  is  only  by  the  comity  of  other  States  that  laws 
can  operate  beyond  the  limit  of  the  State  that  makes  them.  In  the 
great  majority  of  cases,  especially  in  this  country,  where  it  is  so  com- 
mon to  travel,  or  to  transact  business  through  agents,  or  to  correspond 
by  letter,  from  one  State  to  another,  it_js  more,  jiist,  as  well  as  more 
convenient,  to  have  regard  to  the  law  of  the  place  of  tlie  contract,  as  a 
'niiifnrm  rule  operating  on  ail  contracts  ofJjuLsamt^  kind,  .iiiid  which  the 
contracting;  parties  may  be  pj-psmnf^^]  to  have  in  contemplation  when 
jnaking.  their  contracts,  than  to  regujj-n  thfilH  at  their  peril  to  know_the 
domkiLLof  those  with  witomthey  deal,  and  to  ascertain  the  law^oLihat 
fIom^i(Ml7T^oweverrcn^ioter^^  many^ascs  c-ould^ot_be_done  wi  th- 

nTsimlljIc^lay  lis  woukl_£reatlv  crippj^uIlcpbweTofcontracting  abroad 
^at^. 

""J^ls  the  law  of  another  State  can  neither  operate  nor  be  executed  in 
this  State  by  its  own  force,  but  only  by  the  comity  of  this  State,  its 
operation  and  enforcement  here  may  be  restricted  by  positive  prohibi- 
tion of  statute.  A  State  may  always  by  express  enactment  protect 
itself  from  being  obliged  to  enforce  in  its  courts  contracts  made  abroad 
by  its  citizens,  which  are  not  authorized  by  its  own  laws.  Under  the 
French  code,  for  instance,  which  enacts  that  the  laws  regulating  the 
status  and  capacity  of  persons  shall  bind  French  subjects,  even  when 


SECT.  I.]  SWANK   V.    HUFNAGLE.  299 

livino'  in  a  foreign  country,  a  French  court  cannot  enforce  a  contract 
made  by  a  Frenchman  abroad,  which  he  is  incapable  of  making  by  the 
law  of  France.     See  Westlake,  §§  399,  400. 

It  is  possible  also  that  in  a  State  where  the  common  law  prevailed  in 
full  force,  by  which  a  married  woman  was  deemed  incapable  of  binding 
herself  by  any  contract  whatever,  it  might  be  inferred  that  such  an 
utter  incapacity,  lasting  throughout  the  joint  lives  of  husband  and 
wife,  must  be  considered  as  so  fixed  by  the  settled  policy  of  the  State, 
for  the  protection  of  its  own  citizens,  that  it  could  not  be  held  by  the 
courts  of  that  State  to  yield  to  the  law  of  another  State  in  which  she 
might  undertake  to  contract. 

But  it  is  not  true  at  the  present  day  that  all  civilized  States  recognize 
the  absolute  incapacity  of  married  women  to  make  contracts.  The 
tendency  of  modern  legislation  is  to  enlarge  their  capacity  in  this 
respect,  and  in  many  States  they  have  nearly  or  quite  the  same  powers 
as  if  unmarried.  In  Massachusetts,  even  at  the  time  of  the  making  of 
the  contract  in  question,  a  married  woman  was  vested  by  statute  with 
a  ver}'  extensive  power  to  carr}-  on  business  by  herself,  and  to  bind 
herself  by  contracts  with  regard  to  her  own  property,  business,  and 
earnings  ;  and,  before  the  bringing  of  the  present  action,  the  power  had 
been  extended  so  as  to  include  the  making  of  all  kinds  of  contracts, 
with  any  person  but  her  husband,  as  if  she  were  unmarried.  _Thereis 
therefore  no  reason  of  public  policy  which  should  prevent  the  majn- 
tenance  of  this  action.  Jxidgment  for  the  plaintiffs. 


SWANK  V.   HUFNAGLE. 

Supreme  Court  of  Indiana.     1887. 

[Reported  111  Indiana,  583.] 


f 

Elliott,  J.     The  appellant  sued  the  appellee,  Melissa  Hufnagle, 

and  her  husband,  upon  a  note  and  mortgage  executed  in  Darke  County, 
Ohio,  on  land  situate  in  this  State.  The  appellee,  Melissa  Hufnagle, 
answered  that  she  was  a  married  woman,  and  that  the  mortgage  was 
executed  by  her  as  the  surety  of  her  husband,  and  assumed  to  convey 
land  in  this  State  owned  by  her.     The  appellant  replied  that  the  con- 


y^ 


300  SWANK   V.    HUFNAGLE.  [CHAP.  VI. 

tract  was  made  in  Ohio,  and  that  by  a  statute  of  that  State  a  married 
woman  had  power  to  execute  such  a  mortgage,  but  the  statute  of  Ohio 
is  not  set  forth. 

The  trial  court  did  right  in  adjudging  the  replj'  bad.  The  jvalidjt^>^ 
^ofjihe-ffiertgage-of- real  property  is  to  be  determined  by  tlie  lajy  of  the^ 
place  where  the  property  is  situated.  Mr.  Jones  says  :  "A  mortgage 
of  course  takes  effect  b}'  virtue  of  the  law  of  the  place  where  the  land 
is  situated."  1  Jones,  Mortg.  §  823.  This  is  well  settled  law.  Story, 
Conflict  of  Laws  (8th  ed.),  609  auth.  n.  ;  Bethell  v.  Bethell,  92  Ind. 
318. 

Judge  Story,  in  sections  66  and  102  of  his  work  on  the  Conflict  of 
Laws,  does  not  treat  of  conveyances  or  mortgages  of  land,  but  of  con- 
tracts of  an  entirely  diff"erent  class,  so  that  the  appellant  gets  no 
support  from  what  is  there  laid  down  as  the  law. 

Under  the  act  of  1881  a  mortgage  executed  by  a  married  woman  as 
suret}'  on  laud  owned  by  her  in  this  State  is  void. 

There  is  another  reason  for  adjudging  tlie  reply  bad,  and  that  is  this, 
it  does  not  set  out  the  foreign  statute  on  which  it  professes  to  be  based. 
It  is  well  settled  that  where  a  pleading  is  founded  on  a  foreign  statute 
the  statute  must  be  set  forth.  Wilson  v.  Clark,  11  Ind.  385  ;  Men- 
denhall  v.  Gately,  18  Ind.  149;  Kenyon  v.  Smith,  24  Ind.  11  ;  Tyler 
V.  Kent,  52  Ind.  583  ;  Milligan  lu  State,  ex  rel,  86  Ind.  553. 

We  cannot  disturb  the  finding  on  the  evidence. 

Judgment  affirmed. 

On  Petition  for  a  Reheaking. 

Elliott,  J.  In  the  argument  on  the  petition  for  a  rehearing, 
counsel  contend  that  we  were  in  error  in  holding  that  a  mortgage 
executed  b}-  a  married  woman  in  Ohio  as  suret}'  for  her  husband  can- 
not be  enforced  in  this  State,  and  they  refer  us  to  cases  holding  that 
the  construction  of  a  contract  is  governed  by  the  law  of  tlie  place 
where  it  was  made.  But  the  argument  is  unavailing,  for  counsel 
mistake  the  point  in  dispute.  The  question  is  not  how  the  contract 
shall  be  construed,  but  had  the  married  woman^capacityijo  execute  it? 
The  question  is  one  oiTcapacity,  nor^"constructioTL  The  trial  court 
was  not  asked  to  construe  a  mortgage,  but  to  enforce  one  which  our 
statute  declares  shall  not  be  enforceable.  The  purpose  of  the  suit  is 
not  to  obtain  a  judicial  interpretation  of  a  contract,  but  to  foreclose  a 
mortgage  which  our  law  declares  a  married  woman  has  no  capacity  to 
execute. 

We  suppose  it  quite  clear  that  if  the  mortgagor  has  no  capacity-  to 
execute  a  deed  or  mortgage,  tlie  instruinont  cannot  be  enforced, 
although  tlic  incapacity  is  established  by  the  law  of  the  place  where 
the  land  is  situated.  If,  for  instance,  a  married  woman  should  ex- 
ecute a  deed  or  mortgage  without  her  husband  joining  with  her,  it 
could  not  be  enforced  in  a  State  where  the  law  required  her  husband 
to  join.     This  is  so  because  the  question  is  one  of  power,  and  power 


^ 


SECTs  I.]  SELL   V.   MILLER.  801 

is  created  or  withheld  bj-  the  law  of  the  place  where  the  land  lies.  It 
is  hardly  necessary  to  cite  authorities  upon  this  elementary  proposi- 
tion, but  there  is  so  convenientl}'  at  hand  a  decision  of  the  Supreme 
Court  of  Ohio,  where  the  rule  is  affirmed,  that  we  cite  it.  Brown  v. 
National  Bank,  44  Ohio  St.  269.  In  that  case  it  was  said :  "  We  are 
not  unmindful  of  the  principle  that  deeds  intended  to  convey  or  en- 
cumber an  interest  in  land  situated  in  one  State,  executed  in  another, 
must  derive  their  vitality  from  the  laws  of  the  former." 

Our  statute  provides  that  the  deeds  of  persons  under  twenty-one 
j'ears  of  age  shall  be  voidable,  and  this  law  would  undoubtedly  entitle 
an  infant  under  that  age  to  avoid  a  deed  to  land  in  this  State  ex- 
ecuted in  Ohio,  and  the  principle  in  such  a  case  is  the  same  as  that 
which  rules  here,  for,  in  both  cases,  the  question  is  one  of  capacity'. 
In  discussing  this  question  an  American  author  saj^s :  "But  in  re- 
ference to  contracts  about  the  sale  and  conveyance  of  land  such 
capacity  depends  upon  the  laws  of  the  State  wherein  the  land  is 
situated.  This  is  the  general  ruling  in  America  as  to  the  law  upon 
these  subjects,  in  whatsoever  court  the  question  may  arise,  domestic 
or  foreign.  This  rule  applies  to  questions  of  infanc}',  coverture, 
majorit}^,  and  of  legal  capacity  generall}-."  Rorer,  Inter-State  Law, 
190  ;  1  Jones,  Mortg.,  §  662  ;  4  Kent  Com.,  star  p.  441. 

Petition  overruled.^ 


SELL  V.   MILLER. 

Supreme  Court  of  Ohio.     1860. 
[Reported  11  Ohio  State,  331.] 

By  the  Court.  Where  a  married  woman  over  eighteen,  but  under 
twenty-one  years  of  age,  has  her  domicil,  and  joins  with  her  husband 
in  the  execution  of  a  mortgage,  within  a  foreign  jurisdiction,  where 
the  age  of  majority  is  fixed  at  twenty-one  3'ears,  upon  real  estate 
situate  in  Ohio,  held  :  That  such  mortgage  is  not  invalid  for  want  of 
capacity  on  her  part  to  contract ;  the  capacit}'  to  contract,  in  respect 
to  immovables,  being  governed  by  t5e~^^w^nEe~^^s^j:nd^MG£^j^e 
taw^fthe  domicth "  "Motion  overruled. 

1  Ace.  Post  V.  First  Nat.  Bank,  138  111.  559,  28  N.  E.  978  ;  Cochran  v.  Benton,  126 
Ind.  58;  Frierson  v.  Williams,  57  Miss.  451;  Johnson  v.  Gawtry,  1  Mo.  App.  322; 
Wood  I'.  Wheeler,  111  X.  C.  231  ;  Bauin  v.  Birchall,  150  Pa.  164,  24  Atl.  620.  Contra, 
Kelly  V.  Davis,  28  La.  Ann.  773.  — Ed. 


302  DALRYMFLE   V.    DALUYMPLE.  [CHAP.  VI. 


SECTION  n. 

MARRIAGE. 


DALRYMPLE   v.   DALRYMPLE. 
Consistory  Court  of  London.     1811. 

[Reported  2  Haggard  Consistory,  54.] 

This  was  a  case  of  restitution  of  conjugal  rights,  brought  by  the  wife 
against  tlie  husband,  in  which  the  chief  point  in  discussion  was,  the 
validity  of  a  Scotch  marriage,  ;jer  verba  de  jyrcesenti,  and  without  reli- 
gious celebration  :  one  of  the  parties  being  an  English  gentleman,  not 
otherwise  resident  in  Scotland  than  as  quartered  with  his  regiment  in 
that  country. 

Sir  William  Scott. ^  The  cause  has  proceeded  regularly  on  both 
sides,  and  has  been  instructed  with  a  large  mass  of  evidence,  much  of 
it  replete  with  legal  erudition,  for  which  the  court  has  to  acknowledge 
great  obligations  to  the  gentlemen,  who  have  been  examined  in  Scotland. 
It  has  also  been  argued  with  great  industr}*  and  ability  bj'  the  counsel 
on  both  sides,  and  now  stands  for  final  judgment.  Being  entertained 
in  an  English  court,  it  must  be  adjudicated  according  to  the  principles 
of  English  law  applicable  to  such  a  case.  But  the  only  principle  appli- 
cable to  such  a  case  b}'  the  law  of  England  is  that  the  validit}'  of  TNIiss  ' 
Gordon's  marriage  rights  must  be  tried  by  reference  to  the  la;w  of  the 
country  where,  if  they  exist  at  all,  they  had  their  origin.  Having  fur- 
nished this  principle,  the  law  of  England  withdraws  altogether,  and 
leaves  the  legal  question  to  the  exclusive  judgment  of  the  law  of 
Scotland.   .    .   . 

The  considerations  that  apply  to  the  indiscretions  of  youth,  to  the 
habits  of  a  military  profession,  and  to  the  ignorance  of  the  law  of  Scot- 
land, arising  from  a  foreign  birth  and  education,  are  common  to  both, 
and  I  might  say,  to  all  systems  of  law.  The}-  are  circumstances,  which 
are  not  to  be  left  entirely  out  of  the  consideration  of  the  court,  in  weigh- 
ing the  evidence  for  the  establishment  of  the  facts,  but  have  no  power- 
ful effect  upon  the  legal  nature  of  the  transaction  when  established. 

The  law,  which,  in  both  countries,  allows  the  minor  to  marry,  attri- 
butes to  him,  in  a  way  which  cannot  be  legally  averred  against,  upon 
the  mere  ground  of  youth  and  inexperience,  a  competent  discretion  to 
dispose  of  himself  in  marriage;  he  is  arrived  at  years  of  discretion, 
quoad  hoc,  whatever  he  may  be  with  respect  to  other  transactions  of 
life,  and  he  cannot  be  heard  to  plead  the  indiscretion  of  minority.  Slill 
less  can  the  hal)its  of  a  particular  profession  exonerate  a  man  from  the 

^  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.  II.]  DALRYMPLE    V.    DALRYMPLE.  303 

general  obligations  of  law.  And  with  respect  to  any  ignorance  arising 
from  foreign  birth  and  education,  it  is  an  indispensable  rule  of  law,  as 
exercised  in  all  civilized  countries,  that  a  man  who  contracts  in  a 
country,  engages  for  a  competent  knowledge  of  the  law  of  contracts  in 
that  countrj'.  If  he  rashly  presumes  to  contract  without  such  knowl- 
edge, he  must  take  the  inconveniences  resulting  from  such  ignorance 
upon  himself,  and  not  attempt  to  throw  them  upon  the  other  party,  who 
has  engaged  under  a  proper  knowledge,  and  sense  of  the  obligation, 
which  the  law  would  impose  upon  him  by  virtue  of  that  engagement. 
According  to  tlie  judgment  of  all  the  learned  gentlemen  who  have  been 
examined,  the  law  of  Scotland  binds  Mr.  Dalrymple,  though  a  minor, 
a  soldier,  and  a  foreigner,  as  effectively  as  it  would  do  if  he  had  been 
an  adult,  living  in  a  civil  capacity,  and  with  an  established  domicil  in 
that  country. 

The  marriage,  which  is  pleaded  to  be  constituted,  by  virtue  of  some 
or  all  of  the  facts,  of  which  I  have  just  given  the  outline,  and  to  which 
I  shall  have  occasion  more  particularly  to  advert  in  the  course  of  my 
judgment,  has  been  in  the  argument  described  as  a  clandestine  and 
irregular  marriage.  It  is  certainly  a  private  transaction  between  the 
individuals,  but  it  does  not  of  course  follow  that  it  is  to  be  considered 
as  a  clandestine  transaction,  in  any  ignominious  meaning  of  the  word  ; 
for  it  may  be  that  the  law  of  the  country  in  which  the  transaction  took 
place  ma^'  contemplate  private  marriages  with  as  much  countenance 
and  favor  as  it  does  the  most  public.  It  depends  likewise  entirely 
upon  the  law  of  the  countr}'  whether  it  is  justly  to  be  styled  an  irregular 
marriage.  In  some  countries  one  onlv  form  of  contracting  marriage  is 
acknowledged,  as  in  our  own,  with  the  exception  of  particular  indul- 
gences to  persons  of  certain  religious  persuasions  ;  saving  those  excep- 
tions, all  marriages  not  celebrated  according  to  the  prescribed  form 
are  mere  nullities  ;  there  is  and  can  be  no  such  thing  in  this  countr}-  as 
an  irregular  marriage.  In  some  other  countries,  all  modes  of  exchang- 
ing consent  being  equally  legal,  all  marriages  are  on  that  account  equally 
regular.  In  other  countries,  a  form  is  recommended  and  sanctioned, 
but  with  a  toleration  and  acknowledgment  of  other  more  private  modes 
of  effecting  the  same  purpose,  though  under  some  discountenance  of  the 
law,  on  account  of  the  non-conformity  to  the  order  that  is  established. 
What  is  the  law  of  Scotland  upon  this  point?  .   .   . 

I  entertain  as  confident  an  opinion  as  it  becomes  me  to  do,  that  the 
rule  of  the  law  of  Scotland  remains  unshaken  ;  that  the  contract  de 
prcesenti  does  not  require  consummation  in  order  to  become  "  verj' 
mati'imon}' ;  "  that  it  does,  ipso  facto  et  ipso  jure,  constitute  the  relation 
of  man  and  wife.  .  .  .  "When  I  speak  of  a  contract,  I  mean  of  course 
one  that  is  attended  with  such  qualifications  as  the  law  of  Scotland 
requires  for  such  a  contract.^  .   .  . 

1  The  court,  upon  examining  the  evidence,  held  that  in  this  case  a  marriage  had 
taken  place  according  to  the  Scotch  law.  —  Ed. 


304  WARTER   V.   WARTER.  [CHAP.  Vt 


WARTER  V.  WARTER. 
High  Court  of  Justice,  Probate  Division.     1890. 

[Reported  15  Probate  Division,  152.] 

Sib  James  Hannen,  President.  The  plaintiff  claims  probate  of 
a  will  ^  dated  Februar}^  6,  1880,  made  by  her  father,  Henry  De  Grey 
Warter,  who  died  on  March  23,  1889.  The  defendant,  the  son  of 
Henry  De  Grey  Warter,  alleges  that  the  will,  dated  February  6,  1880, 
was  revoked  by  the  subsequent  marriage  of  the  testator  with  Annette 
Louisa  Tayloe  on  April  2,  1881.  The  question  in  the  cause  is  whether 
the  marriage  celebrated  on  April  2,  1881,  was  the  marriage  of  the 
parties  —  that  is,  whether  they  had  not  concluded  a  valid  marriage 
before  the  execution  of  the  will  —  namely,  on  February  3,  1880. 
The  material  facts  are  as  follows  :  The  mother  of  the  plaintiff  and 
defendant  was  formerly  the  wife  of  John  Edward  Tayloe,  and  was 
resident  with  him  in  India.  In  1879  Henry  De  Grey  Warter,  the  de- 
ceased in  this  cause,  was  a  major  in  the  Royal  Artillery,  stationed 
in  India.  In  1879  John  Edward  Tayloe,  being  so  resident,  instituted 
proceedings  in  the  High  Court  of  Judicature  at  Fort  William  in  Bengal 
for  the  dissolution  of  his  marriage  on  the  ground  of  his  wife's  adultery 
with  Major  De  Grey  Warter,  and  a  decree  nisi  was  pronounced  on 
Ma}'  19,  1879.  This  decree  was  made  absolute  on  November  27, 
1879.  By  the  Indian  Divorce  Act  of  1869,  jurisdiction  is  given  to 
dissolve  the  marriage  when  the  petitioner  professes  the  Christian  re- 
ligion and  resides  in  India  at  the  time  of  presenting  the  petition  — 
that  is,  though  he  or  she  may  not  be  domiciled  there.  On  the  insti- 
tution of  the  proceedings  Mrs.  Tayloe  returned  to  England.  Major 
De  Grey  Warter  afterwards  joined  her  in  England,  and  went  through 
a  ceremony  of  marriage  on  February  3,  1880.  At  the  time  of  the 
marriage  Major  De  Grey  Warter  was  domiciled  in  England.  By  the 
Indian  Divorce  Act  —  Act  No.  4  of  1869  —  under  which  the  pro- 
ceedings were  taken,  it  is  enacted  that  "  when  six  months  after  the 
date  of  any  decree  of  the  High  Court  dissolving  a  marriage  have  ex- 
pired, and  no  appeal  has  been  presented  against  such  decree  to  the 
High  Court  in  its  appellate  jurisdiction,  but  not  sooner,  it  shall  be 
lawful  for  the  respective  parties  to  the  marriage  to  marry  again  as  if 
the  prior  marriage  had  been  dissolved  by  death."  The  marriage  in 
question  in  this  case  took  place  witliin  three  months  of  the  decree. 
It  was  contended  that  as  tliis  marriage  was  celebrated  in  England  the 
parties  were  freed  from  the  restraint  imposed  by  the  Indian  Divorce 
Act.  I  am  of  opinion  that  that  is  not  the  case.  Mrs.  Tayloe  was 
subject  to  the  Indian  law  of  divorce,  and  she  could  only  contract  a 
valid  second  marriage  by  showing  tliat  the  incapacity  arising  from  her 

*  By  the  terms  of  his  will  Colonel  Warter  left  .'\11  Iiis  property  to  his  "  reputed 
wife."  —  Ed. 


SECT.  II.]  SOTTOMAYOR    V.    DE    BARROS. 


305 


previous  marriage  had  been  effectually  removed  by  the  proceedings 
taken  under  that  law.  This  could  not  be  done,  as  the  Indian  law, 
like  our  own,  does  not  completely  dissolve  the  tie  of  marriage  until 
the  lapse  of  a  specified  time  after  the  decree.  This  is  an  integral 
part  of  the  proceedings  by  which  alone  both  the  parties  can  be  released 
from  their  incapacity  to  contract  a  fresh  marriage.  The  case  of  Scott 
V.  Attorney-General,  11  P.  D.  128,  was  relied  on  for  the  plaintiff.  I 
there  held  that  a  colonial  law  prohibiting  the  marriage  of  the  guilty 
party,  so  long  as  the  other  remained  unmarried,  did  not  operate  as  a 
bar  to  marriage  where  the  guilty  party  had  acquired  a  domicil  in  this 
country.  The  distinction  between  that  case  and  the  present  is  that 
there  the  incapacity  to  remarry  imposed  by  the  colonial  law  only  at- 
tached to  the  guilty  party.  It  was,  therefore,  penal  in  its  character, 
and  as  such  was  inoperative  out  of  the  jurisdiction  under  which  it  was 
inflicted.  A  case  to  the  same  effect,  and  based  on  the  same  principle, 
was  cited  from  an  American  report :  Ponsford  v.  Johnson,  2  Blatchf. 
51.  For  these  reasons  I  am  of  opinion  that  the  marriage  of  Febru- 
ary 3,  1880,  was  invalid,  and  consequently  that  the  will  of  February  6, 
1880,  was  revoked  by  the  valid  marriage  celebrated  on  April  2,  1881. 


SOTTOMAYOR  v.   DE  BARROS. 
Court  of  Appeal.     1877. 
\_Reported  3  Probate  Division,  1.] 

Cotton,  L.  J.  This  is  an  appeal  from  an  order  of  the  Court  ol 
Divorce,  dated  the  17th  of  March,  1877,  dismissing  a  petition  pre- 
sented by  Ignacia  Sottomayor,  praying  the  court  to  declare  her  mar- 
riage with  the  respondent  Gonzalo  de  Barros  to  be  null  and  void. 
The  respondent  appeared  to  the  petition,  but  did  not  file  an  answer  or 
appear  at  the  hearing;  and  by  direction  of  the  judge,  the  Queen's 
proctor  was  served  with  the  petition,  and  appeared  by  counsel  to 
argue  the  case  against  the  petition. 

There  were  several  grounds  on  which  the  petitioner  originally  claimed 
relief,  but  the  onU-  g;round  now  to  be  considered  is  that  sh^  nnri  thp 
respondent  were  under  a  personal  infap.icity  to  contract  mnrriagp^ 
The  facts  are  these  :  The  petitioner  and  respondent  are  Portuguese 
subjects,  and  are  and  have  always  been  domiciled  in  that  country, 
where  they  both  now  reside.  They  are  first  cousins,  and  it  was 
proved  that  b\'  the  law  of  Portugal  first  cousins  are  incapable  of  con- 
tracting marriage  b}'  reason  of  consanguinit}-,  and  that  any  marriage 
between  parties  so  related  is  by  the  law  of  Portugal  held  to  be  in- 
cestuous and  therefore  null  and  void  ;  but  though  not  proved,  it  was 

20 


306  SOTTOMAYOR   V.   DE    BARROS.  [CHAP.  VI. 

admitted  before  us  that  such  a  marriage  would  be  valid  if  solemnized 
under  the  authorit}'  of  a  papal  dispensation. 

In  the  year  1858  the  petitioner,  her  father  and  mother,  and  her 
uncle,  De  Barros,  and  his  family,  including  the  respondent,  his  eldest 
son,  came~tb  England,  and  the  two  families  occupied  a  house  jointly 
in  Dorset  Square,  London.  The  petitioner's  father  came  to  this  coun- 
try for  the  benefit  of  his  health,  and  De  Barros  for  the  education  of 
his  children  and  to  superintend  the  sale  of  wine.  De  Barros  subse- 
quently,  in  1861,  became  manager  to  a  firm  of  wine  merchants  in 
London,  carrying  on  business  under  the  style  of  Caldos  Brothers  & 
Co.,  of  which  the  petitioner's  father  was  made  a  partner,  and  which 
stopped  payment  in  1865.  nn__tlip  ^^^t  of  Jiinn,  1S66,  tlip  potitionerT 
at  that  time  of  the  age  of  fourteen  years  nnd  n.  half,  nnd  the  respond- 
ent, ofThc  age__of  ffixt*^^"  ypm-g,  ^ere  married  at  a  registiar's_officp 
irTTomloni  Noi-eligious  ceremon}'  accompanied  or  followed  the  mar- 
riao-e,  and  although" the  parties  lived  together  in^Tlie  same  iiouse  until 
the  year  1872,  thev  never  slept  together,  and  the  marriage  was  never 
consummated.  The  petitioner  stated  that  she  went  through  the  form 
of  marriage  contrary  to  her  own  inclination,  by  the  persuasion  of  her 
uncle  and  mother,  on  the  representation  that  it  would  be  the  means  of 
preserving  her  father's  Portuguese  property  from  the  consequences  of 
the  bankruptcy  of  the  wine  business. 

Under  these  circumstances  the  petitioner,  in  November,  1874,  pre- . 
sented  her  petition  for  the  object  above  mentioned,  and  Sir  R.  Philli- 
more,  before  whom  the  case  was  heard,  declined  to  declare  the  marriage 
invalid  and  dismissed  the  petition,  but  did  so,  as  we  understand, 
rather  because  he  felt  himself  bound  by  the  decision  in  the  case  of 
Simonin  v.  Mallac,  2  Sw.  &  Tr.  67  ;  29  ^L.  J.  (P.  M.  &  A.)  97,  than 
because  he  considered  that  on  principle  the  marriage  ought  to  be  held 
good.  Ifjlie_pgjliaa-hadj3een  subjects  of  Her  Majestxjjpniifilpd  in 
England,  the  marriage  would" uncloubtcdl}-  b.nyp  Ikhmi  valirl.  But  it  is 
a  well-recognized  priiiciplc^ofja^v  t.hut  tliiLaiI££ti£ILP^  DersonaPcaiiac^ 
Uy~to~eivEerTnro  any  contract  is  to  be  dccidcdbyjli^  )aw  of  ilonikl,!. 
It' is,  howeverT  urged  that  thiis  doos  noL^iTplyToTthe  contract  of  mar- 
riage, and  that  a  marriage  valid  according  to  the  law  of  the  country 
where  it  is  solemnized  is  valid  everywhere.  This,  in  our  opinion,  is 
not  a  correct  statement  of  the  law.  TlMUaH_Qll^a^camitrx  where  a 
marriage  issolemnizcd  must  alone  dccidejiU  questions  relatiiit.'-  to  th£ 
varidirrofjthc  ceremony  l)y  which  the  marri.n^e  is  allc^^'-ed  to  have  been 
co"nstjtiitcniQ2Hk-a5JlL2^!^  solirThiit  of  mnrriiffp   iirrsopil 

capacity  must  depend  on  the  law  of  domjcU.;  and  if  the  laws  of  any 
country  prohibit  its  subjects  within  certain  degrees  of  consanguinity 
from  contracting  marriage,  and  stamp  a  marriage  between  ].ersons 
within  the  prohibited  degrees  as  incestuous,  this,  in  our  opinion,  im- 
poses on  the  subjects  of  that  country  a  personal  incapacity,  which 
continues  to  affect  tlicm  so  long  as  they  are  domiciled  in  the  country 
where   this   law   prevails,    and    renders   invalid    a   marriage    between 


SECT.  II.]  SOTTOMAYOE  V.    DE   BARROS.  307 

persons  both  at  the  time  of  their  marriage  subjects  of  and  domiciled 
ijtiThe  countrj^  which_imposes  this  restriction,  wharever  such__marriage 
may  have  been  solernnized.  In  argument  several  passages  in  Story's 
Conflict  of  Laws  were  referred  to,  in  support  of  the  contention  that 
in  an  English  court  a  marriage  between  persons  who  b}'  our  law  may 
lawfully  intermarry  ought  not  to  be  declared  void,  though  declared 
incestuous  by  the  law  of  the  parties'  domicil,  unless  the  marriage  is 
one  which  the  general  consent  of  Christendom  stamps  as  incestuous. 
It  is  hardly  possible  to  suppose  that  the  law  of  England,  or  of  any 
Christian  countrj',  would  consider  as  valid  a  marriage  which  the 
general  consent  of  Christendom  declared  to  be  incestuous.  Probabl}' 
the  true  explanation  of  the  passages  in  Story  is  given  in  Brook  v. 
Brook,  9  H.  L.  C.  193,  at  pp.  227,  241,  b}'  Lord  Cranworth  and  by 
Lord  Wensleydale,  who  express  their  opinions  that  he  is  referring  to 
marriages  not  prohibited  or  declared  to  be  incestuous  bj'  the  municipal 
law  of  the  country  of  domicil. 

But  it  is  said  that  the  impediment  imposed  b}'  the  law  of  Portugal 
can  be  removed  by  a  Papal  dispensation,  and,  therefore,  that  it  cannot 
be  said  there  is  a  personal  incapacity  of  the  petitioner  and  respondent 
to  contract  marriage.  The  evidence  is  clear  that  by  the  law  of  Portu- 
gal the  impediment  to  the  marriage  between  the  parties  is  such  that, 
in  the  absence  of  Papal  dispensation,  the  marriage  would  be  by  the 
law  of  that  countr}-  void  as  incestuous.     The  statutes  of  theEngli^h 

Parliament   contain a    declaration  _that    no^  Papal   dispensation    can 

sanction  a  marj;iage  otherwise  incesjtuous  ;_but  the  law  of^Portjigal 
does  recognize  the  validity  of  _^ch  a  dispensation,  and  it  cannot 
in~'our  o[Jinion  beTield"tFat  such  a  dispensation  is  a  matter  of  form 
affecting  only  the  sufficiency  of  the  ceremony  b}-  which  the  marriage 
is  effected,  or  that  the  law  of  Portugal,  which  prohibits  and  declares 
incestuous,  unless  with  such  a  dispensation,  a  marriage  between  the 
petitioner  and  respondent,  does  not  impose  on  them  a  personal  in- 
capacity to  contract  marriage.  It  is  proved  that  the  courts  of  Portu- 
gal, where  the  petitioner  and  respondent  are  domiciled  and  resident, 
would  hold  the  marriage  void,  as  solemnized  between  parties  incapable 
of  marrying,  and  incestuous.  How  can  the  courts  of  this  country 
hold  the  contrary,  and,  if  appealed  to,  say  the  marriage  is  valid?  It 
was  pressed  upon  us  in  argument  that  a  decision  in  favor  of  the 
petitioner  would  lead  to  many  difficulties,  if  questions  should  arise 
as  to  the  validit}'  of  a  marriage  between  an  English  subject  and  a 
foreigner,  in  consequence  of  prohibitions  imposed  by  the  law  of  the 
domicil  of  the  latter.  Our  opinion  on  this  a])peal  is  confined  to  the 
case  where  both  the_contracting  parties  are,  at  the  timp  r>f  fhoir  mnr. 
riage,  domiciled  in  a  country  the  laws  of  which  prohibit  their  marriage.^ 
All  persons  arelegally  bound  to  take  notice  of  the  laws  of  the  country 
where  they  are  domiciled.  No  country  is  bound  to  recognize  the  laws 
of  a  foreign  state  when  thej*  work  injustice  to  its  own  subjects,  and 
this  principle  would  prevent  the  judgment  in  the  present  case  being 


308  SOTTOMAYOR   V.   DE    BARROS.  [CHAP.  VI. 

relied  on  as  an  autborit}-  for  setting  aside  a  marriage  between  a 
foreigner  and  an  Englisli  subject  domiciled  in  England,  on  the  ground 
of  any  personal  incapacity  not  recognized  by  the  law  of  this  country. 

The  counsel  for  the  petitioner  relied  on  tlie  case  of  Brook  v.  Brook, 
as  a  decision  in  his  favor.  If,  in  our  opinion,  that  case  had  been  a 
decision  on  the  question  arising  on  this  petition,  we  should  have 
thought  it  sufficient  without  more  to  refer  to  that  case  as  decisive. 
The  judgment  in  that  case,  however,  only  decided  that  the  English 
courts  must  hold  invalid  a  marriage  between  two  English  subjects 
domiciled  in  this  countr3',  who  were  prohibited  from  intermarrying  by 
an  English  statute,  even  though  the  marriage  was  solemnized  during  a 
temporary'  sojourn  in  a  foreign  country.  It  is,  therefore,  not  decisive 
of  the  present  case  ;  but  the  reasons  given  by  the  Lords  who  delivered 
their  opinions  in  that  case  strongly  support  the  principle  on  which  this 
judgment  is  based. 

It  only  remains  to  consider  the  case  of  Simonin  v.  Mallac.  The 
objection  to  the  validity  of  the  marriage  in  that  case,  which  was 
solemnized  in  England,  was  the  want  of  the  consent  of  parents 
required  by  the  law  of  France,  but  not  under  the  circumstances  by 
that  of  this  country.  In  our  opinion,  this  consent  must  be  considered 
a  part  of  the  ceremony  of  marriage,  and  not  a  matter  affecting  the 
personal  capacity  of  the  parties  to  contract  marriage ;  and  the  decision 
in  Simonin  v.  Mallac  does  not,  we  think,  govern  the  present  case. 
We  are  of  opinion  that  the  judgment  appealed  from  must  be  reversed, 
and  a  decree  made  declaring  the  marriage  null  and  void. 

Judgmejit  reversed.^ 

1  The  case  having  been  sent  down  to  the  Probate  Division  of  the  High  Court,  Sir 
James  Hennen,  President,  found  that  though  the  petitioner  was  domiciled  in 
Portugal  at  the  time  of  the  marriage,  the  respondent  was  domiciled  in  England  at 
that  time ;  and  he  held  the  marriage  valid.  In  tlie  course  of  his  opinion  he  said : 
"The  Lord  .Justices  appear  to  have  laid  down  as  a  principle  of  law  a  proposition 
which  was  much  wider  in  its  terms  than  was  necessary  for  the  determination  of  the 
case  before  them.  It  is  thus  expressed  :  '  It  is  a  well  recognized  principle  of  law  that 
the  question  of  personal  incapacity  to  enter  into  any  contract  is  to  be  decided  by  the 
law  of  domicil ; '  and  again,  'As  in  other  contracts,  so  in  that  of  marriage,  personal 
capacity  must  depend  on  the  law  of  domicil.'  It  is  of  course  competent  for  the 
Court  of  Appeal  to  lay  down  a  principle  which,  if  it  formed  the  basis  of  a  judgment  of 
that  court,  mu.-^t,  unless  it  should  be  disclaimed  by  the  House  of  Lords,  be  binding  in 
all  future  cases.  But  I  trust  that  I  may  be  permitted  without  disrespect  to  say  that 
the  doctrine  thus  laid  down  has  not  hitherto  been  '  well  recognized.'  On  the  con- 
trary, it  appears  to  me  to  be  a  novel  principle,  for  which  up  to  the  present  time  there 
has  been  no  English  authority.  What  authority  there  is  seems  to  me  to  be  the  other 
way."  —  Ed. 


SECT.  II.]  COMMONWEALTH    V.   LANE.  309 


COMMONWEALTH  v.   LANE. 
Supreme  Judicial  Court  of  Massachusetts.     1873. 

{Reported  113  Massachusetts,  458.] 

Indictment  on  the  Gen.  Sts.  e.  165,  §  4,  for  polygamy.^ 

Gray,  C.  J.  The  report  finds  that  the  defendant  was  lawfully  mar- 
ried to  his  first  wife  in  this  Commonwealth  ;  that  she  obtained  a  divorce 
here  from  the  bond  of  matrimony,  for  his  adultery  ;  that  he  was  after- 
wards, while  still  a  resident  of  this  Commonwealth,  married  to  a  second 
wife  in  the  State  of  New  Hampshire,  and  cohabited  with  her  in  this 
Commonwealth,  the  first  wife  being  still  alive  ;  and  the  question  is 
whether  he  is  indictable  for  polygamy,  under  the  Gen.  Sts.  c.  165,  §  4. 

It  is  provided  by  our  statutes  of  divorce  that,  in  cases  of  divorce  from 
the  bond  of  matrimony,  the  innocent  party  may  marry  again  as  if  the 
other  party  were  dead  ;  but  that  any  marriage  contracted  by  the  guilty 
party  during  the  life  of  the  other,  without  having  obtained  leave  from  this 
court  to  marry  again,  shall  be  void,  and  such  party  shall  be  adjudged 
guilty  of  pol3gamy.     Gen.  Sts.  c.  107,  §§  25,  26  ;  St.  1864,  c.  216. 

The  marriage  act,  Gen.  Sts.  c.  106,  specifies,  in  §§  1-3,  what  mar- 
riages shall  be  void  by  reason  of  consanguinity  or  affinity ;  in  §  4,  that 
all  marriages  contracted  while  either  of  the  parties  has  a  former  wife  or 
husband  living,  except  as  provided  in  c.  107,  shall  be  void ;  in  §  5,  that 
no  insane  person  or  idiot  shall  be  capable  of  contracting  marriage ;  and 
in  §  6  as  follows:  "When  persons  resident  in  this  State,  in  order  to 
evade  the  preceding  provisions,  and  with  an  intention  of  returning  to 
reside  in  this  State,  go  into  another  State  or  country,  and  there  have 
their  marriage  solemnized,  and  afterwards  return  and  reside  here,  the 
marriage  shall  be  deemed  void  in  this  State." 

All  these  sections,  except  the  last,  are  manifestly  directed  and 
limited  to  marriages  within  the  jurisdiction  of  this  Commonwealth  ;  and 
the  last  has  no  application  to  this  case,  because  it  does  not  appear  to 
have  been  proved  or  suggested  at  the  trial  that  the  parties  to  the 
second  marriage  went  out  of  this  State  to  evade  our  laws,  or  even  that 
the  second  wife  had  resided  in  this  State  or  knew  of  the  previous  mar- 
riage and  divorce. 

By  the  Gen.  Sts.  c.  165,  §  4,  "  whoever,  having  a  former  husband  or 
wife  living,  marries  another  person,  or  continues  to  cohabit  with  such 
second  husband  or  wife  in  this  State,"  shall  (except  when  the  first 
husband  or  wife  has  for  seven  years  been  absent  and  not  known  to  the 
other  party  to  be  living,  or  in  case  of  a  person  legally  divorced  from 
the  bonds  of  matrimony  and  not  the  guilty  cause  of  such  divorce)  be 
deemed  guilty  of  polygamy  and  punished  accordingly. 

This  statute  is  not  intended  to  make  any  marriages  unlawful  which 

i  Statement  of  facts  and  arguments  of  counsel  are  omitted. — Ed. 


310  COMMONWEALTH    V.   LANE.  [CHAP.  VL 

are  not  declared  to  be  unlawful  by  other  statutes,  nor  to  punish  co- 
habitation under  a  lawful  marriage.  Its  object  is  to  prohibit  unlawful 
second  marriages,  whether  the  parties  are  actuallj'  married  in  this 
Commonwealth,  or  continue  after  being  married  elsewhere  to  cohabit 
here.  But  in  either  alternative,  in  order  to  sustain  the  indictment,  the 
second  marriage  must  be  unlawful.  It  is  not  enough  that  the  marriage 
is  such  as  would  be  unlawful  if  contracted  in  this  Commonwealth  ;  it  must 
be  a  marriage  which,  being  contracted  where  it  was,  is  unlawful  here. 

The  marriage  in  New  Hampshire  is  stated  in  the  report  to  have 
been  "  according  to  the  forms  of  law  ;  "  and  it  appears  by  the  statutes 
of  New  Hampshire,  therein  referred  to,  that  the  only  provision  relating 
to  the  invalidity'  of  marriages  on  account  of  the  incompetency  of  parlies 
to  contract  them  is  as  follows  :  "  All  marriages  prohibited  by  law,  on 
account  of  the  consanguinit\-  or  affinity  of  the  parties,  or  where  either 
has  a  former  wife  or  husband  living,  knowing  such  wife  or  husband  to 
be  alive,  if  solemnized  in  this  State,  shall  be  absolutely  void  without 
an}'  decree  of  divorce  or  other  legal  process."  Gen.  Sts.  of  N.  H. 
(1867),  c.  163,  §  1.  That  provision  clearly  does  not  extend  to  a  case 
in  which  the  former  wife,  having  obtained  a  divorce  from  the  bond  of 
matrimony,  was  absolutely  freed  from  all  obligation  to  the  husband, 
and  in  which,  as  observed  by  Mr.  Justice  Wilde,  in  a  like  case,  *■*•  not- 
withstanding the  restraints  imposed  on  the  husband,  he  being  the  guilty 
cause  of  the  divorce,  the  dissolution  of  the  marriage  contract  was  total, 
and  not  partial."  Commonwealth  v.  Putnam,  1  Pick.  136,  139.  The 
marriage  in  New  Hampshire  must  therefore  be  taken  to  have  been 
valid  by  the  law  of  that  State. 

The  question  presented  by  the  report  is  therefore  reduced  to  this  :  If 
a  man  who  has  been  lawfully*  married  in  this  Commonwealth,  and 
whose  wife  has  obtained  a  divorce  a  vinculo  here  because  of  his 
adultery,  so  that  he  is  prohibited  by  our  statutes  from  marrying  again 
without  leave  of  this  court,  is  married,  without  having  obtained  leave 
of  the  court,  and  being  still  a  resident  of  this  Commonwealth,  to 
another  woman  in  another  State,  according  to  its  laws,  and  afterwards 
cohabits  with  her  in  this  Commonwealth,  is  his  second  marriage  valid 
here  ? 

The  determination  of  this  question  depends  primarily  upon  the  con- 
struction of  our  statutes,  but  ultimately  upon  fundamental  principles 
of  jurisprudence,  which  have  been  clearly  declared  b}'  the  judgments  of 
our  predecessors  in  this  court,  and  in  the  light  of  which  those  statutes 
must  be  read  in  order  to  ascertain  their  just  extent  and  effect. 

Wiiat  marriages  between  our  own  citizens  shall  be  recognized  as 
valid  in  this  Commonwealth  is  a  subject  within  the  power  of  the  legis- 
lature to  regulate.  But  when  the  statutes  are  silent,  questions  of  the 
validity  of  marriages  are  to  be  determined  by  the  Jus  f/entium,  the 
common  law  of  nations,  the  law  of  nature  as  generall}'  recognized  by 
all  civilized  peopkjs. 

By  that  law,  the  validity  of  a  marriage  depends  upon  the  question 


SECT.  II.]  COMMONWEALTH    V.   LANE.  311 

whether  it  was  valid  where  it  was  contracted  ;  if  valid  there,  it  is  valid 
everywhere. 

The  onl}'  exceptions  admitted  by  our  law  to  that  general  rule  are  of 
two  classes:  1st.  Marriages  which  are  deemed  contrary  to  the  law  of 
nature  as  generall}'  recognized  in  Christian  countries  ;  2d.  Marriages 
which  tlie  legislature  of  the  Commonwealth  has  declared  sliall  not  be 
allowed  any  validity,  because  contrary  to  th(!  policy  of  oin*  own  laws. 

The  first  class  includes  onh'  those  void  for  polygam}-  or  for  incest. 
To  bring  it  within  the  exception  on  account  of  polygamy,  one  of  the 
parties  must  have  another  husband  or  wife  living.  To  bring  it  within 
the  exception  on  the  ground  of  incest,  there  must  be  such  a  relation 
between  the  parties  contracting  as  to  make  the  marriage  incestuous 
according  to  the  general  opinion  of  Christendom  ;  and,  by  that  test, 
the  prohibited  degrees  include,  beside  persons  in  the  direct  line  of 
consanguinit}',  brothers  and  sisters  only,  and  no  other  collateral  kin- 
dred. Wightman  v.  Wightman,  4  Johns.  Ch.  343,  349-351  ;  2  Kent 
Com.  83  ;  Story,  Confl.  §  114  ;  Sutton  v.  Warren,  10  Met.  451 ;  Steven- 
son V.  Gra}-,  17  B.  Mon.  193  ;  Bowers  v.  Bowers,  10  Rich.  Eq.  551. 

A  marriage  abroad  between  persons  more  remoteh'  related,  not 
absolutel}'  void  by  the  law  of  the  country  where  it  was  celebrated,  is 
valid  here,  at  least  until  avoided  by  a  suit  instituted  for  the  purpose, 
even  if  it  might  have  been  so  avoided  in  that  country  ;  and  this  is  so 
whether  the  relationship  between  the  parties  is  one  which  would  not 
make  the  marriage  void  if  contracted  in  this  Commonwealth,  as  in  the 
case  of  a  marriage  between  a  widower  and  his  deceased  wife's  sister, 
or  one  which  would  invalidate  a  marriage  contracted  here,  as  in  the 
case  of  a  marriage  between  aunt  and  nephew. 

In  Greenwood  v.  Curtis,  6  Mass.  358,  378,  379,  Chief  Justice  Par- 
sons said:  "  If  a  foreign  State  allows  of  marriages  incestuous  bj-  the 
law  of  nature,  as  between  parent  and  child,  such  marriage  could  not  be 
allowed  to  have  an}'  validity  here.  But  marriages  not  naturally'  unlaw- 
ful, but  prohibited  b}-  the  law  of  one  State,  and  not  of  another,  if  cele- 
brated where  they  are  not  prohibited,  would  be  holden  valid  in  a  State 
where  they  are  not  allowed.  As  in  this  State  a  marriage  between  a 
man  and  his  deceased  wife's  sister  is  lawful  but  it  is  not  so  in  some 
States  ;  such  a  marriage  celebrated  here  would  be  held  valid  in  any 
other  State,  and  the  parties  entitled  to  the  benefits  of  the  matrimonial 
contract."  This  distinction  was  approved  b}'  Chancellor  Kent  and  by 
Judore  Story.     2  Kent  Com.  85,  note  a  ;  Stor}-,  Confl.  §  116. 

In  The  Queen  v.  Wye,  7  A.  &  E.  761,  771;  s.  c  3  N.  &  P.  6,  13, 
14  ;  it  was  decided  that  the  marriage  of  a  man  with  his  mother's  sister 
in  England  before  the  St.  of  5  &  6  Will.  IV.  c.  54,  though  voidable  by 
process  in  the  ecclesiastical  courts,  was,  until  so  avoided,  valid  for  all 
civil  purposes,  including  legitimacy  and  settlement.  In  accordance 
with  that  decision,  it  was  held  in  Sutton  v.  Warren,  10  Met.  451,  that 
such  a  marriage  contracted  in  England,  and  never  avoided  there,  must, 
upon  the  subsequent  removal  of  the  parties  to  Massachusetts,  and  the 


312  COMMONWEALTH   V.   LANE.  [CHAP.  VL 

question  arising  collaterally  in  an  action  at  common  law,  be  deemed 
valid  here,  although,  if  contracted  in  this  Commonwealth,  it  would 
have  been  absolutel}'  void. 

A  marriage  which  is  prohibited  here  by  statute,  because  contrary  to 
the  policy  of  our  laws,  is  yet  valid  if  celebrated  elsewhere  according  to 
the  law  of  the  place,  even  if  the  parties  are  citizens  and  residents  of 
this  Commonwealth,  and  have  gone  abroad  for  tlie  purpose  of  evading 
our  laws,  unless  the  legislature  has  clearly  enacted  that  such  marriages 
out  of  the  State  shall  have  no  validity  here.  This  has  been  repeatedly 
affirmed  by  well-considered  decisions. 

For  example,  while  the  statutes  of  Massachusetts  prohibited  mar- 
riages between  white  persons  and  negroes  or  mulattoes,  a  mulatto  and 
a  white  woman,  inhabitants  of  Massachusetts,  went  into  Rhode  Island, 
and  were  there  married  according  to  its  laws,  and  immediately  returned 
into  Massachusetts  ;  and  it  was  ruled  by  Mr.  Justice  Wilde  at  the  trial, 
and  affirmed  by  the  whole  court,  that  the  marriage,  even  if  the  parties 
went  into  Rhode  Island  to  evade  our  laws,  yet,  being  good  and  valid 
there,  must  upon  general  principles  be  so  considered  here,  and  that  the 
wife  therefore  took  the  settlement  of  her  husband  in  this  Common- 
wealth.    Medway  r.  Needham,  16  Mass.  157. 

So  it  has  been  held  that  a  man,  from  whom  his  wife  had  obtained  in 
this  State  a  divorce  a  vinculo  for  his  adulter}',  which  b}'  our  statutes 
disabled  him  from  contracting  another  marriage,  might  lawfully  marr}' 
again  in  another  State  according  to  its  laws;  that  the  children  of  such 
marriage  took  the  settlement  of  their  father  in  this  Commonwealth ; 
and  that  the  new  wife  was  entitled  to  dower  in  his  lands  here,  even  if 
the  wife  as  well  as  the  husband  was  domiciled  here,  and  knew  of  the 
previous  divorce  and  its  cause,  and  went  into  the  other  State  to  evade 
our  laws — so  long  as  our  statutes  did  not  declare  a  marriage  con- 
tracted there  with  such  intent  to  be  void  here.  West  Cambridge  v. 
Lexington,  1  Pick.  506 ;  Putnam  v.  Putnam,  8  Pick.  433.  See  also 
Dickson  v.  Dickson,  1  Yerger,  110;  Ponsford  y.  Johnson,  2  Blatcbf. 
C.  C.  51  ;  2  Kent  Com.  91-93. 

The  principles  upon  which  these  decisions  proceeded  were  recognized 
in  all  the  English  cases  decided  before  the  American  Revolution, 
although  it  is  true,  as  has  since  been  pointed  out,  that  the  particular 
question  in  each  of  them  related  rather  to  the  forms  required  than  to 
the  capacity  of  the  parties. 

Lord  Hardwicke's  Marriage  Act  in  1752  provided  that  all  marriages 
of  minors,  solemnized  by  license  without  the  consent  of  parents  or 
guardians,  should  be  void.  St.  26  Geo.  II.  c.  33,  §  11.  Yet  in  the 
first  case  which  arose  under  that  act,  in  which  an  English  bo}'  of  eight- 
een years  old  went  abroad  with  an  English  woman,  and  was  there 
married  to  licr  without  such  consent,  Lord  Hardwioke,  sitting  as  chan- 
cellor, assumed  that  if  the  marriage  had  been  valid  b^'  the  law  of  the 
countr}'  in  which  it  was  celebrated,  it  would  have  been  valid  in  Eng- 
land, sayiug:  ''  It  will  not  be  v.ilid  here  unless  it  is  so  by  the  laws  of 


SECT.  II.]  COMMONWEALTH   V.   LANE.  318 

the  country  where  it  was  had  ;  and  so  it  was  said  by  Murray,  attorney- 
general,  to  have  been  determined  lately  at  the  Delegates."  And  it 
would  seem  by  the  report  that  the  woman  defeated  an  application  to 
the  Ecclesiastical  Court  to  annul  the  marriage,  by  refusing  to  appear 
there.     Butler  v.  Freeman,  Ambl.  301. 

The  case,  thus  referred  to  as  determined  at  the  Delegates,  was  evi- 
dently Scrimshire  v.  Scrimshire,  decided  by  Sir  Edward  Simpson  in  the 
Consistor}'  Court  in  1752.  Of  that  opinion.  Sir  George  Hay,  in  Har- 
ford V.  Morris,  2  Hagg.  Con.  423,  431,  said,  "  Every  man  has  allowed 
the  great  and  extensive  knowledge  of  the  judge ;  "  and  Sir  William 
Wynne,  in  Middleton  v.  Janverin,  2  Hagg.  Con.  437,  446,  remarked 
that  he  remembered  to  have  heard  that  the  judgment  was  founded  on 
great  deliberation,  and  that  Lord  Hardwicke  was  consulted  on  it. 

In  Scrimshire  v.  Scrimshire,  Sir  Edward  Simpson,  in  delivering 
judgment,  said  :  "  The  question  being  in  substance  this.  Whether,  by 
the  law  of  this  country,  marriage  contracts  are  not  to  be  deemed  good 
or  bad  according  to  the  law  of  the  country  in  which  they  are  formed ; 
and  whether  they  are  not  to  be  construed  by  that  law?  If  such  be  the 
law  of  this  country,  the  rights  of  English  subjects  cannot  be  said  to  be 
determined  by  the  laws  of  France,  but  by  those  of  their  own  country, 
which  sanction  and  adopt  this  rule  of  decision."  "  All  nations  allow 
marriage  contracts;  thej-  are  juris  gentium,  and  the  subjects  of  all 
nations  are  equally  concerned  in  them  ;  and  from  the  infinite  mischief 
and  confusion  that  must  necessarily  arise  to  the  subjects  of  all  nations, 
with  respect  to  legitimacy,  successions,  and  other  rights,  if  the  respec- 
tive laws  of  different  countries  were  only  to  be  observed,  as  to  mar- 
riages contracted  by  the  subjects  of  those  countries  abroad,  all  nations 
have  consented,  or  must  be  presumed  to  consent,  for  the  common 
benefit  and  advantage,  that  such  marriages  should  be  good  or  not, 
according  to  the  laws  of  the  country  where  they  are  made.  It  is  of 
equal  consequence  to  all,  that  one  rule  in  these  cases  should  be 
observed  by  all  countries,  —  that  is,  the  law  where  the  contract  is 
made."  And  he  declared  the  marriage  in  that  case  to  be  invalid,  only 
because  it  appeared  to  be  wholly  null  and  void  by  the  laws  of  France, 
where  it  was  celebrated.     2  Hagg.  Con.  395,  407,  408,  417,  421. 

In  Compton  v.  Bearcroft  (1767-69),  where  the  parties,  both  being 
English  subjects  and  the  libellant  a  minor,  ran  away  and  were  married 
in  Scotland,  a  libel  for  the  nullity  of  the  marriage  was  dismissed  by 
Sir  George  Hay  in  the  Court  of  Arches,  upon  the  ground  that  Lord 
Hardwieke's  Act  did  not  extend  to  Scotland  ;  but  by  the  Court  of 
Delegates  on  appeal,  consisting  of  Justices  Gould  and  Aston,  Baron 
Perrott,  and  two  doctors  of  civil  law,  upon  the  broader  ground  that 
the  marriage  was  good  by  the  lex  loci.  2  Hagg.  Con.  430,  443,  444, 
and  note;  s.  c.  Bui.  N.  P.  113,  114.  See  also  Ilderton  v.  Ilderton,  2 
H.  Bl,  145  ;  Dairy mple  v.  Dairy raple,  2  Hagg.  Con.  54,  59  ;  Ending  v. 
Smith,  ib.  371,  390,  391  ;  Steele  v.  Braddell,  Milward,  1,  21. 

In  a  recent  case  in  the  House  of  Lords,  the  cases  of  Medway  v. 


314  COMMONWEALTH    V.   LANE.  [CHAP.  VI. 

Needham,  16  Mass.  157,  and  Sutton  v.  Warren,  10  Met.  451,  above 
cited,  have  been  severely  criticised,  and  pointedly  denied  to  be  law. 
Brook  V.  Brook,  9  H.  L.  Cas.  193;  s.  c.  3  Sm.  &'^Gif:f.  481.  As  that 
court  is  the  one  of  all  foreign  tribunals,  the  opinions  of  which,  owing 
to  the  learning,  experience,  and  ability  of  the  judges,  we  are  accustomed 
to  regard  with  the  most  respect,  it  becomes  necessary  to  examine  with 
care  the  scope  of  that  decision,  and  the  soundness  of  the  reasons 
assigned  for  it ;  and  in  order  to  make  this  examination  intelligible,  it 
will  be  convenient  first  to  refer  to  the  English  statutes  and  to  some 
earlier  decisions. 

Several  statutes  of  Henry  VIII.,  which  it  is  necessary  to  state  in 
detail,  declared  marriages  within  certain  degrees  of  consanguinity  and 
affinit}',  and  among  others  the  marriage  of  a  widower  with  his  deceased 
wife's  sister,  to  be  "  contrary  to  God's  law  as  limited  and  declared  b}' 
act  of  Parliament."  Sts.  25  Hen.  VIII.  c.  22  ;  28  Hen.  VIII.  cc.  7, 
16  ;  32  Hen.  VIII.  c.  38.  While  those  statutes  remained  unaltered,  a 
period  of  nearly  three  hundred  years,  such  marriages  were  held  by  the 
judges  not  to  be  absolutely  void,  but  voidable  only  by  suit  in  the 
ecclesiastical  courts  during  the  lifetime  of  both  parties,  and,  if  not  so 
avoided,  were  treated  as  valid,  the  wife  entitled  to  dower,  and  the 
children  of  the  marriage  legitimate.  Co.  Lit.  33;  Hinks  v.  Harris,  4 
Mod.  182;  s.  c.  12  Mod.  35;  Garth.  271;  2  Salk.  548.  Lord  Hard- 
wicke,  in  Brownsword  v.  Edwards,  2  Ves.  Sen.  243,  245;  1  Bl.  Com. 
434,  435  ;  Elliott  v.  Gurr,  2  Phillim.  16;  The  Queen  v.  Wye,  7  A.  & 
E.  761,  771  ;  s.  c.  3  N.  &  P.  6,  13,  14;  Westby  v.  Westby,  2  Dru. 
&  War.  502,  515,  516;  s.  c.  1  Con.  &  Laws.  537,  544,  545;  4  Irish 
Eq.  585,  593. 

The  St.  of  5  «&;  6  Will.  IV.  c.  54,  commonly  known  as  Lord  Lynd- 
hurst's  Act,  provided,  as  to  marriages  between  persons  within  the 
prohibited  degrees  of  affinity,  as  follows  :  1st,  that  such  marriages, 
celebrated  before  the  passage  of  the  act,  should  not  be  annulled, 
except  in  a  suit  alread}'  pending  in  the  ecclesiastical  courts  ;  2d,  that 
such  marriages,  thereafter  celebrated,  should  be  absolutely  null  and 
void  to  all  intents  and  purposes  whatever ;  3d,  that  nothing  in  this  act 
should  be  construed  to  extend  to  Scotland. 

The  marriage  of  a  widower  with  the  sister  of  his  deceased  wife,  in 
England,  after  tliis  statute,  was  held  to  be  within  the  prohibited 
degrees  and  utterly  void.     The  Queen  v.  Chadwick,  11  Q.  B.  173,  234. 

A  case  afterwards  came  before  the  Scotch  courts,  in  which  an  Eng- 
lish citizen  married  his  deceased  wife's  sister  in  PLngland  ;  the  validity 
of  the  marriage  was  not  disputed  during  her  life,  and  she  died  before 
the  St.  of  Will.  IV.  ;  and  the  question  was,  whether  the  children  of 
the  marriage  could  inherit  his  lands  in  Scotland.  The  Scotch  courts, 
in  a  series  of  very  able  opinions,  held  that  they  could,  upon  the  ground 
that  by  the  law  of  P^ngland,  the  marriage,  not  having  been  cliallenged 
in  the  lifetime  of  both  parties,  could  not  in  any  form  be  declared  invalid 
in  England,  and  the  cliildren  were  legitimate  there,  and  must  therefore 


SECT.  II.]  COMMONWEALTH    V.   LANE.  315 

be  deemed  legitimate  in  Scotland.  Fenton  v.  Livingstone,  16  Ct.  of 
Sess.  Cas.  (2d  Series)  104,  and  18  ib.  865.  The  House  of  Lords,  on 
appeal,  reversed  that  decision,  and  held  that,  although  the  marriage 
had,  by  reason  of  the  peculiar  rules  governing  the  English  courts  of 
temporal  and  ecclesiastical  jurisdiction,  become  irrevocable  there,  yet 
it  was  always  illegal;  and  that,  those  rules  not  being. applicable  in  the 
Scotch  courts,  the  legitimacy  of  the  children  in  Scotland  depended 
upon  the  question  whether  the  marriage  was  illegal  b}-  the  law  of 
Scotland,  s.  c.  3  Macq.  497.  The  Scotch  court  thereupon  decided 
that  the  marriage  was  illegal,  and  that  the  children  were  incapable  of 
inheriting  lands  in  Scotland,  s.  c.  23  Ct.  of  Sess.  Cas.  (2d  Series) 
366. 

In  Brook  v.  Brook,  t/bi  supra,  a  widower  and  the  sister  of  his 
deceased  wife,  being  lawfully  domiciled  in  England,  while  on  a  tcm- 
porar}'  visit  to  Denmark,  had  a  marriage  solemnized  between  them, 
which  was  by  the  laws  of  Denmark  lawful  and  valid  to  all  intents  and 
purposes  whatsoever.  In  a  suit  in  equity,  brought  after  the  death  of 
both  parties,  to  ascertain  the  rights  of  the  children  in  their  father's 
property,  the  House  of  Lords,  in  accordance  with  the  opinions  of 
Lords  Campbell,  Cranworth,  St.  Leonards,  and  Wensle3-dale,  and 
affirming  a  decree  rendered  by  Vice  Chancellor  Stuart,  assisted  by  Mr. 
Justice  Cresswell,  held  that  the  marriage  in  Denmark  was  wholly  void 
by  the  St.  of  Will.  IV.,  and  that  the  children  of  that  marriage  were 
bastards. 

The  decision  was  put,  b}-  the  learned  judges  who  concurred  in  it, 
upon  three  different  grounds. 

The  first  ground  was  that  the  St.  of  Will.  IV.  disqualified  English 
subjects  everywhere  from  contracting  such  a  marriage.  This  ground 
was  taken  in  the  court  below,  and  by  Lord  St.  Leonards  in  the  House 
of  Lords.  3  Sm.  &  Giff.  522,  525  ;  9  H.  L.  Cas.  234-238.  But  it 
was  expressly  disclaimed  by  Lord  Campbell,  Lord  Cranworth,  and 
Lord  Wensleydale,  the  two  former  of  whom  expressed  opinions  that 
the  statute  did  not  extend  to  all  the  colonies,  and  all  three  declared 
that  they  did  not  think  its  purpose  was  to  put  an  end  to  such  mar- 
riages by  British  subjects  throughout  the  world.  9  H.  L.  Cas.  214, 
222,  240. 

The  second  ground,  which  was  suggested  by  Mr.  Justice  Cresswell 
and  Lord  Wensleydale  onlj-,  and  is  opposed  to  all  the  American 
authorities,  was  that  the  case  justl}'  fell  within  the  first  exception, 
stated  in  Story,  Confl.  §  114,  of  marriages  involving  polygamy  and 
incest.  3  Sm.  &  Giff,  513  ;  9  H.  L.  Cas.  241,  245.  In  view  of  that 
position,  it  ma}'  be  observed  that  in  an  earlier  case,  in  which  Lord 
Wenslej-dale  himself  (then  Baron  Parke)  delivered  the  opinion,  a  mar- 
riage of  a  widower  with  his  deceased  wife's  sister,  before  the  St.  of 
Will.  IV.,  was  prevented  from  being  made  irrevocable  by  that  statute, 
only  b}'  the  institution,  a  week  before  its  passage,  of  a  suit  for  nullity  in 
the  Ecclesiastical  Court  by  the  father  of  the  supposed  wife  ;  and  by  the 


316  COMMONWEALTH   V.   LANE.  [CHAP.  VI 

decision  of  the  Privy  Council,  that  because,  if  the  marriage  was  not  set 
aside,  the  birth  of  a  child  of  the  marriage  would  impose  a  legal  obliga- 
tion upon  the  grandfather  to  maintain  the  child  in  the  event  of  its 
being  poor,  lame,  or  impotent,  and  unable  to  work,  he  had,  according 
to  the  rules  of  the  ecclesiastical  courts,  a  sufficient  interest,  "  although 
of  an  extremely  minute  and  contingent  character,"  to  support  such  a 
suit.     Sherwood  v.  Ray,  1  Moore  P.  C.  353,  401,  402. 

The  third  ground,  upon  which  alone  all  the  law  lords  agreed,  was 
that  the  St.  of  Will.  IV.  made  all  future  marriages  of  this  kind  between 
English  subjects,  having  their  domicil  in  England,  absolutely  void, 
because  declared  by  act  of  Parliament  to  be  contrary  to  the  law  of 
God,  and  must  therefore  be  deemed  to  include  such  marriages,  although 
solemnized  out  of  the  British  dominions. 

The  law  of  England,  as  thus  declared  by  its  highest  legislative  and 
judicial  authorities,  is  certainly  presented  in  a  remarkable  aspect.  1st. 
Before  the  St.  of  Will.  IV.,  marriages  within  the  prohibited  degrees 
of  affinity,  if  not  avoided  by  a  direct  suit  for  the  purpose  during  the 
lifetime  of  both  parties,  had  the  same  effect  in  England,  in  every 
respect,  as  if  wholly  valid.  2d.  This  statute  itself  made  such  mar- 
riages, already  solemnized  in  England,  irrevocably  valid  there,  if  no 
suit  to  annul  them  was  already  pending.  3d.  It  left  such  marriages  in 
England,  even  before  the  statute,  to  be  declared  illegal  in  the  Scotch 
courts,  at  least  so  far  as  rights  in  real  estate  in  Scotland  were  con- 
cerned. 4th.  According  to  the  opinion  of  the  majorit}'  of  the  law  lords, 
it  did  not  invalidate  marriages  of  English  subjects  in  English  colonies, 
in  which  a  different  law  of  marriage  prevailed.  5th.  But  it  did  make 
future  marriages  of  this  kind,  contracted  either  in  England  or  in  a 
foreign  country,  b}'  English  subjects  domiciled  in  England,  absolutely 
void,  because  declared  by  the  British  Parliament  to  be  contrary  to  the 
law  of  God. 

The  judgment  proceeds  upon  the  ground  that  an  act  of  Parliament 
is  not  merel}-  an  ordinance  of  man,  but  a  conclusive  declaration  of  the 
law  of  God  ;  and  the  result  is  that  the  law  of  God,  as  declared  by  act 
of  Parliament  and  expounded  by  the  House  of  Lords,  varies  according 
to  time,  place,  length  of  life  of  parties,  pecuniary  interests  of  third 
persons,  petitions  to  human  tribunals,  and  technical  rules  of  statutory 
construction  and  judicial  procedure. 

The  case  recalls  the  saying  of  Lord  Holt,  in  London  v.  Wood,  12 
Mod.  669,  687,  688,  that  "  an  act  of  Parliament  can  do  no  wrong, 
though  it  may  do  several  things  that  look  pretty  odd ;  "  and  illustrates 
the  effect  of  narrow  views  of  polic}',  of  the  doctrine  of  "  the  omnipo- 
tence of  Parliament,"  and  of  the  consequent  uiifamiliarit}'  with  ques- 
tions of  general  jurisprudence,  upon  judges  of  the  greatest  vigor  of 
mind,  and  of  the  profoundest  learning  in  the  municipal  law  and  in  the 
forms  and  usages  of  the  judicial  system  of  their  own  country. 

Such  a  decision,  upon  such  reasons,  from  any  tribunal,  however 
eminent,  can  have  no  weight  in  inducing  a  court,  not  bound  by  it  as 
authority,  to  overrule  or  disregard  its  own  decisions. 


SECT.  11.]  KINNEY   V.   COMMONWEALTH.  317 

The  provision  of  the  Gen.  Sts.  c.  107,  §  25,  forbidding  the  guilty- 
party  to  a  divorce  to  contract  another  marriage,  during  the  life  of  the 
other  party,  without  leave  of  this  court,  on  pain  of  being  adjudged 
guilty  of  polygamy,  does  not  create  a  permanent  incapacity,  lil^e  one 
arising  from  consanguinity  or  afflnity.^Jlt  is  rather  in  the  nature  of  th£ 
inTjv;>£U!9JlJ[I^  fl.  penalty,  to  whijji  it^AaaauldJ)e  difficult  to  give-an^- extra- 
territorial o])eration.  West  Cambridge  v.  Lexington,  1  Pick.  506,  510, 
Tr2 ;  Ciarkvn^\rk,  8  Cush.  385,  386.  Upon  the  principles  and 
authorities  stated  in  the  earlier  part  of  this  opinion,  it  certainly  can- 
not invalidate  a  subsequent  marriage  in  another  State  according  to  its 
laws,  at  least  without  proof  that  the  parties  went  into  that  State  and 
were  married  there  with  the  intent  to  evade  the  provisions  of  the 
statutes  of  this  Commonwealth.  No  such  intent  being  shown  in  this 
case,  we  need  not  consider  its  effect,  if  proved,  nor  whether  the  indict- 
ment is  in  due  form.  See  Commonwealth  v.  Putnam,  1  Pick.  136, 
139  ;  Commonwealth  v.  Hunt,  4  Cush.  49. 

N^ew  trial  ordered} 


KINNEY  V.   COMMONWEALTH. 

Court  of  Appeals  of  Virginia.     1878. 

[Reported  30   Grattan,  858.] 

Christian,  J.^  The  plaintiff  in  error  was  indicted  in  the  county  court 
of  Augusta  County  for  lewdly  associating  and  cohabiting  with  Mahala 
Miller.  He  was  found  guilty.  .  .  .  The  Commonwealth,  to  sustain  the 
issue  on  her  part,  proved  to  the  jury  that  the  defendant,  Andrew 
Kinney,  and  a  certain  Mahala  Miller,  on  the  1st  day  of  January,  1877, 
and  from  that  time  to  the  27th  day  of  August,  1877,  in  the  county  of 
Augusta  and  State  of  Virginia,  did  live  and  associate  together  as  man 
and  wife  ;  that  said  Andrew  Kinney  is  a  negro,  and  said  Mahala  Miller 
a  white  woman,  and  that  in  November,  1874,  they,  as  citizens  of  the 
State  of  Virginia,  regularly  domiciled  in  the  county  of  Augusta,  left 
their  own  State  for  the  purpose  of  being  married  in  the  District  of 
Columbia,  and  in  ten  days  thereafter  returned  to  this  State  to  live,  and 
have  since  lived  together  as  man  and  wife  in  said  county  of  Augusta. 
The  defendant,  to  sustain  the  issue  on  his  part,  proved  that  he  and  the 
said  MahaUi  Miller  were  married  in  the  District  of  Columbia  on  the  4th 
day  of  November,  1874,  in  accordance  with  the  laws  of  said  district. 

1  Ace.  Scott  w.  A.  G.,  11  P.  D.  128 ;  Poudsford  v.  Johnson,  2  Blatchf.  51  ;  Phillips  v. 
Madrid,  83  Me.  205,  22  Atl.  1 14  ;  Van  Yoorhis  v.  Brintnall,  86  N.  Y.  18  ;  S.  v.  Sliattuck, 
69  Vt.  403,  38  Atl.  81.  Contra,  Williams  v.  Oates,  5  Ire.  L.  535;  Stull's  Estate,  183 
Pa.  625,  39  Atl.  16  (but  see  Van  Storch  v.  Griffin,  71  Pa.  240,  not  cited  in  the  later 
case) ;  Pennegar  v.  S  ,  87  Tenn.  244.  And  see  Succession  of  Hernandez,  46  La.  Ann. 
962,  15  So.  461.  — Ed. 

2  Part  of  the  opinion  is  omitted.  —  Ed. 


318  *  KINNEY   V,   COMMONWEALTH.  [CHAP.  VL 

The  court  .  .  .  instructed  the  jury  as  follows  :  "  That  the  said  mar- 
riage of  the  defendant  and  said  Mahala  Miller  was,  under  the  circum- 
stances proven,  but  a  vain  and  futile  attempt  to  evade  the  laws  of 
Virginia,  and  override  her  well-known  public  policy,  and  is  therefore 
no  bar  to  this  prosecution ;  to  which  opinion  ...  the  defendant,  by 
his  counsel,  excepts."  .  .  . 

The  sole  question  submitted  by  this  bill  of  exceptions  for  the  adjudi- 
cation of  this  court  is,  Whether  the  alleged  marriage  celebrated  in  the 
District  of  Columbia,  "  in  accordance  with  the  laws  of  said  district," 
as  certified  in  the  certificate  of  facts,  is  a  bar  to  this  prosecution  ?  It 
is  conceded  that  a  marriage  in  this  State  between  a  white  person  and  a 
negro  is  void.  It  is  not  only  prohibited  by  the  statute  law,  but  pen- 
alties are  imposed  for  its  violation.  The  first  section  of  chapter  105, 
Code  1873,  provides  that  "  all  marriages  between  a  white  person  and 
a  negro,  and  all  marriages  which  are  prohibited  by  law  on  account  of 
either  of  the  parties  having  a  former  wife  or  husband  then  living,  shall 
be  absolutely  void  without  any  decree  of  divorce  or  other  legal  process." 
In  the  same  section  other  marriages  prohibited  by  law  therein  men- 
tioned, are  voidable  only  ;  that  is,  declared  to  be  void  only  from  the 
time  they  shall  be  so  declared  by  decree  of  divorce  or  nullity.  These 
are  cases  of  marriages  within  the  prohibited  degrees  of  consanguinity 
or  affinity,  or  where  either  party  was  insane  or  incapable  from  physical 
causes.  Such  marriages  are  void  when  declared  to  be  void  by  decree 
of  divorce  or  nullity,  or  when  the  parties  are  convicted  under  the  third 
section  of  chapter  192,  which  denounces  certain  penalties  against  mar- 
riages of  parties  within  the  prescribed  degrees  of  consanguinity  or 
aflSnit}'.  But  marriage  between  a  white  person  and  a  negro  is  declared 
by  statute  to  be  absolutely  void  without  any  decree  of  divorce  or  other 
legal  process.  If,  therefore,  the  marriage  had  been  celebrated  in  this 
State  between  Andrew  Kinney,  who  is  a  negro,  and  Mahala  Miller, 
who  is  a  white  woman,  no  matter  by  what  ceremonies  or  solemnities, 
such  marriage  would  have  been  the  merest  nullit}-,  and  the  parties  must 
have  been  regarded,  under  our  laws,  as  lewdl}'  associating  and  coha])it- 
ing  together,  and  obnoxious  to  the  penalties  denounced  bv  our  statute 
against  this  gross  offence. 

Does  the  marriage  of  the  parties  in  the  District  of  Columbia,  where 
marriages  between  white  persons  and  negroes  are  not  prohibited,  present 
a  bar  to  this  prosecution  and  put  the  parties  on  any  diftercnt  footing 
when  arraigned  before  our  tribunals  for  a  violation  of  the  laws  of  tliis 
State?  It  is  admitted  that  Andrew  Kinnc}'  and  Mahala  Miller  had 
their  domicil  in  Augusta  County,  in  this  State;  that  thev  remained  out 
of  the  vState  only  ten  days  after  their  marriage,  and  returned  here,  and 
that  this  county  is  still  their  domicil. 

It  is  plain  to  be  gathered  from  the  whole  record,  if  not  indeed 
admitted,  that  these  parties,  knowing  they  could  enter  into  no  valid 
marriage  contract  in  this  State,  went  to  the  city  of  Washington  for 
the   purpose   of  evading   the   statute  law    of  this  State ;    were    there 


SECT.  11.]  KINNEY    V.    COMMONWEALTH.  319 

married,  and  in  a  few  daj'S  returned  to  this  State.  Tliey  never  changed 
nor  designed  to  change  then'  domicil.  It  was  here  then ;  it  is  here 
now. 

The  important  question,  and  one  of  first  impression  in  this  State,  is : 
Does  the  marriage  in  the  District  of  Columbia,  made  m  fraudem  legis 
of  this  State,  protect  the  parties  in  a  prosecution  in  this  State  for  a 
violation  of  its  penal  laws  in  this  most  important'  and  vital  branch 
of  criminal  jurisprudence,  affecting  the  moral  well-being  and  social 
order  of  this  State?  Must  the  lex  loci  contractus  or  the  lex  domicilii 
prevail? 

There  can  be  no  doubt  as  to  the  power  of  every  country  to  make 
laws  regulating  the  marriage  of  its  own  subjects  ;  to  declare  who  ma}' 
marry,  how  they  may  marry,  and  what  shall  be  the  legal  consequences 
of  their  marrying.  The  right  to  regulate  the  institution  of  marriage  ; 
to  classify  the  parties  and  persons  who  ma^'  lawfully  marry;  to  dissolve 
the  relation  by  divorce  ;  and  to  impose  such  restraints  upon  the  relation 
as  the  laws  of  God,  and  the  laws  of  propriety,  morality,  and  social 
order  demand,  has  been  exercised  by  all  civilized  governments  \n  all 
ages  of  the  world. 

It  is  insisted,  however,  b\-  the  learned  counsel  for  the  plaintiff  in 
error,  in  the  ingenious  and  able  argument  which  he  addressed  to  this 
court,  that  conceding  the  power  of  every  State  and  country  to  pass 
such  laws,  yet  thev  never  act  extraterritorial^  but  must  be  confined, 
with  rare  exceptions,  to  such  marriages  as  are  contracted  and  consum- 
mated within  the  State  where  they  are  prohibited.  He  invokes  for  his 
client  in  this  case  the  rule  laid  down  b}'  jurists  and  text-writers,  that 
*'  a  marriage  valid  where  celebrated  is  good  everywhere." 

This  is  undoubtedl}'  the  general  rule.  But  there  are  certain  excep- 
tions to  this  general  rule,  and  while  in  its  application  and  the  affirm- 
ance of  certain  exceptions  thereto,  there  was  for  a  long  time  much 
eonfusion  in  the  authorities  and  conflict  in  the  cases,  I  think  it  may 
now  be  affirmed  that  there  are  exceptions  to  this  general  rule  as  well 
established  and  authoritativeh'  settled  as  the  rule  itself.^  .   .  . 

Whatever  conflict  of  authority  there  may  have  been  on  this  subject, 
it  may  now  be  affirmed,  since  the  decision  of  Brook  v.  Brook,  9  H.  L. 
C.  193,  (that  in  England,  a  marriage  prohibited  by  law  in  that  country, 
between  parties  domiciled  there,  and  declared  by  act  of  Parliament  to 
be  absolutely  void,  is  invalid  there  no  matter  where  celebrated.  >In 
this  country  the  same  doctrine  is  affirmed  in  North  Carolina,  Louisiana, 
and  Tennessee.  See  WilHams  v.  Gates'  ex'or,  5  Ired.  R.  535  ;  State 
V.  Kennedy,  76  North  Car.  251  ;  State  v.  Ross,  76  North  Car.  242  ; 
10  La.  Ann.  411,  Dupre  v.  Boulad's  ex'or. 

Whenever  the  question  has  arisen  in  the  Southern  States,  it  has  been 
held  that  a  marriage  between  a  white  person  and  a  negro,  although 
the  marriage  be  celebrated  in  a  State  where  such  marriages  are  not 

1  The  court  here  cited  Story,  Conflict  of  Laws,  §  113 ;  Brook  v.  Brook,  9  H.  L.  C. 
193.  — Ed. 


320  KINNEY    V.   COMMONWEALTH.  [CHAP.  YI. 

prohibited,  is  void  in  tlie  State  of  the  domicil,  and  wlien  they  go  to 
another  State  temporarily,  and  for  the  purpose  of  evading  the  law,  and 
return  to  their  domicil,  such  marriage  is  no  bar  to  a  criminal  prusecu- 
tion.  And  such  is  the  law  of  this  State,  it  is  now  so  declared  by 
statute.  See  Sess.  Acts  of  1877-8.  The  statute,  however,  was  passed 
after  the  marriage  of  the  [jarlies  in  this  case.  But  without  such  statute, 
the  marriage  was  a  nullity.  It  was  a  marriage  prohibited  and  declared 
"■  absolutely  void."  It  was  contrary  to  the  declared  pubHc  law, 
founded  upon  motives  of  public  policy,  — a  public  policy  atiirmed  for 
more  than,  a  century  ;  and  one  upon  which  social  order,  public  morality, 
and  the  best  interests  of  both  races  depend.  This  unmistakable  policy 
of  the  legislature,  founded,  I  think,  on  wisdom  and  tlie  moral  develop- 
ment of  both  races,  has  been  shown  by  not  only  declaring  marriage 
between  whites  and  negroes  absolutely  void,  but  b}-  prohibiting  and 
punishing  such  unnatural  alliances  with  severe  penalties.  The  laws 
enacted  to  further  and  u[)hold  this  declared  policy  would  be  futile  and 
a  dead  letter  if  in  fraud  of  these  salutary  enactments,  both  races  might, 
by  stepping  across  an  imaginarj'  line,  bid  defiance  to  the  law,  b}' 
immediately  returning  and  insisting  that  the  marriage  celebrated  in 
another  State  or  countrj'  should  be  recognized  as  lawful,  though 
denounced  b}'  the  public  law  of  the  domicil  as  unlawful  and  absolutely 
void.  No  State  will  permit  its  citizens  to  violate  its  laws  b}-  such 
evasions.  But  the  law  of  the  domicil  will  govern  in  such  case,  and 
when  the}'  return,  they  will  be  subject  to  all  its  penalties,  as  if  such 
marriage  had  been  celebrated  within  the  State  whose  public  law  they 
have  set  at  defiance. 

There  is  one  American  case  which  is  directly  opposed  to  the  principles 
herein  declared,  the  facts  of  which  are  precisel}'  the  same  as  in  the  case 
before  us.  It  is  the  case  of  Medway  v.  Needham,  16  Mass.  R.  157, 
which  was  strongly  relied  on  by  the  learned  counsel  for  the  plaintiff 
in  error  as  authorit}-  to  govern  this  case.  But  I  think  that  case  is 
not  supported  b}'  authorit}-  nor  grounded  on  an}'  sound  principles 
of  law.  That  w'as  the  case  of  a  marriage  between  a  white  person  and 
a  negro.  The  parties  were  domiciled  in  INIassachusetts,  whose  laws 
at  that  time  prohibited  such  marriages.  They  went  into  Rhode  Island, 
where  such  marriages  were  lawful,  were  there  married,  and  returned 
to  Massachusetts.  The  Supreme  Court  of  that  State  held  the  marriage 
to  be  valid,  and  declared,  in  an  elaborate  opinion,  that  "  a  marriage 
which  is  good  by  the  laws  of  the  country  where  it  is  celebrated,  is  valid 
in  every  other  country  ;  and  although  it  should  appear  that  the  parties 
went  into  another  State  to  contract  such  marriage,  with  a  view  to  evade 
the  laws  of  their  own  country,  the  marriage  in  the  foreign  country  will 
nevertheless  be  valid  in  the  country  in  which  the  parties  live." 

In  commenting  on  this  case,  the  lord  chancellor,  in  Brook  v.  Brook 
supra  (219),  says:  ''I  cannot  think  it  is  entitled  to  much  weight,  for 
the  learned  judge  admitted  that  he  was  overruling  the  doctrine  of 
Huberus  and  other  eminent  jurists ;  he  relied  on  decisions  in  which 


SECT.  II.]  KINNEY   V.    COMMONWEALTH.  321 

the  forms  only  of  celebrating  the  marriage  in  the  eountr}-  of  celebration 
and  the  country  of  domicil  were  different ;  and  he  took  the  distinction 
between  cases  where  the  absolute  prohibition  of  marriage  is  forbidden 
on  motives  of  policy,  and  where  the  marriage  is  prohibited  as  beinw 
contrary  to  religion  on  the  ground  of  incest.      I,   myself,  must  deny 
the  distinction.     If  a  marriage  is  absolutely  px-ohibited  in  any  fnnnti-y 
as  beincf  contrary  to  public  policy  and  leading  to  social  evils.  T  think 
thatthe  domiciled  inhabitants  of  that  countr}-  cannot  be  permit.t(^d.  by^ 
passmg  the  frontier  and  entering  another  State  in  which  the  marring^,, 
is  not  prohibited,  to  celebrate  a  marriage  forbidden  by  their  own  State^ 
and   immediately  returning   to   their    own   State,    to   insist   on   their ^ 
marriage  being  recognized  as  lawful." 

Lord  Uranworth,  referring  to  the  same  case,  said:  "I  also  concur 
entirely  with  my  noble  and  learned  friend  that  the  American  decision 
of  Medway  v.  Needham,  cannot  be  treated  as  proceeding  on  sound 
principles  of  law. 

"  The  province  or  State  of  Massachusetts  positively  prohibited  by  its 
laws,  as  contraiT  to  public  polic}-,  the  marriage  of  a  mulatto  with 
a  white  woman  ;  and  on  one  of  the  grounds,  pointed  out  b}'  Mr.  Stoiy, 
such  a  marriage  ought  certainly  to  have  been  held  void  in  Massachu- 
setts, though  celebrated  in  another  province  where  such  marriages  were 
lawful." 

With  such  condemnation,  from  so  high  a  source,  of  this  decision 
as  authority,  and  when  it  is  opposed  by  the  decisions  of  our  sister 
Southern  States  above  referred  to,  and  contrary  to  sound  principles  of 
law,  I  think,  though  a  case  exactly  in  point  upon  its  facts,  it  can  have 
but  little  weight  in  forming  our  judicial  determination  of  the  question 
before  us  in  this  case. 

There  is  another  American  case  also  relied  on  b}'  the  counsel  for  the 
plaintiff  in  error  for  the  doctrine  that  "  a  marriage  valid  where  cele- 
brated is  valid  everywhere."  It  is  a  Kentucky  case,  Stevenson  v.  Gray, 
reported  in  17  B.  Monr.  R.  193.  That  was  a  marriage  between  a 
nephew  and  his  uncle's  wife.  Such  a  marriage  was  prohibited  in  Ken- 
tuck}',  but  not  in  Tennessee.  The  parties  went  into  Tennessee,  and 
were  there  married  and  returned  to  Kentuck}-.  It  was  held  that  tlie 
marriage  was  valid  in  Kentucky.  But  it  is  to  be  noted  that  such 
marriages  are  not  declared  by  the  Kentucky  statute  absoluteh'  void,  but 
voidable  only  —  that  is,  to  be  avoided  by  judgment  of  a  district  court 
or  court  of  quarterly  sessions.  The  reasoning  of  the  judge  who  de- 
livered the  opinion  of  the  court  in  that  case,  shows  that  he  treats  the 
case  of  a  marriage  voidable  only,  and  not  ipso  facto  void.  If  such 
marriage  has  been  declared  absolutely  void  by  the  Kentucky  statute, 
the  decision  of  the  court,  no  doubt,  would  have  been  different. 

In  the  seventh  edition  of  Story's  Conflict  of  Laws,  p.  178,  the 
editor  adds  a  section  in  which  he  says  :  The  limitation  defined  bv  Lord 
Campbell,  chancellor,  in  Brook  v.  Brook,  is  certainly  characterized  by 
great  moderation  and  good  sense  ;  that  while  the  form  of  the  contract, 

21 


322  KINNEY   V.   COMMONWEALTH,  [CHAP.  VL 

the  rites  and  ceremonies  proper  or  indispensable  for  its  due  celebration, 
are  to  be  governed  by  the  laws  of  the  place  of  the  contract  or  of  cele- 
bration, the  essentials  of  the  contract  depend  upon  the  lex  domicilii^ 
the  law  of  the  country  in  which  the  parties  are  domiciled  at  the  time  of 
the  marriage,  and  in  which  the  matrimonial  residence  is  contemplated. 
Hence,  if  the  incapacity  of  the  parties  is  such  that  no  marriage  could 
be  solemnized  between  them  .  .  .  and,  without  changing  their  domicil, 
they  go  into  some  other  country  where  no  such  limitation  or  restriction 
exists,  and  there  enter  into  the  formal  relation  with  a  vieAjyto  return 
and  dwell  in  the  country  in  which  such  marriage  is  prohibited  by  posi- 
tive law,  it  is  but  proper  to  say  that  a  proper  self-respect  (of  the  State 
or  government  in  prohibiting  such  a  marriage)  would  seem  to  require 
that  the  attempted  evasion  would  not  be  allowed  to  prevail. 

I  have  thus  considered,  at  length,  the  authorities,  English  and 
American,  on  this  question,  because  it  is  one  of  first  impression  in 
this  court,  and  because  it  is  a  question  which  materially  affects  public 
morality,  social  order,  and  the  best  interests  of  both  races.  The 
public  policy  of  this  State,  in  preventing  the  intercommingling  of  the 
races  by  refusing  to  legitimate  marriages  between  them,  has  been  illus- 
trated by  its  legislature  for  more  than  a  centur\-.  Every  well-organized 
society  is  essentially  interested  in  the  existence  and  harmony  and 
decorum  of  all  its  social  relations.  Marriage,  the  most  elementary  and 
useful  of  all,  must  be  regulated  and  controlled  by  the  sovereign  power 
of  the  State.  The  purity  of  public  morals,  the  moral  and  physical 
development  of  both  races,  and  the  highest  advancement  of  our 
cherished  Southern  civilization,  under  which  two  distinct  races  are  to 
work  out  and  accomplish  the  destin}-  to  which  the  Almighty  has  as- 
signed them  on  this  continent  —  all  require  that  they  should  be  kept 
distinct  and  separate,  and  that  connections  and  alliances  so  unnatural 
that  God  and  nature  seem  to  forbid  them,  should  be  prohibited  b}' 
positive  law,  and  be  subject  to  no  evasion. 

Upon  the  whole  case,  I  am  of  opinion  that  the  marriage  celebrated 
in  the  District  of  Columbia  between  Andrew  Kinney  and  Mahala  Miller, 
though  lawful  there,  being  positively  prohibited  and  declared  void  by 
the  statutes  of  this  State,  is  invalid  here,  and  that  said  marriage  was 
a  mere  evasion  of  the  laws  of  this  State,  and  cannot  be  pleaded  in  bar 
of  a  criminal  prosecution  here. 

If  the  parties  desire  to  maintain  the  relations  of  man  and  wife,  they 
must  change  their  domicil  and  go  to  some  State  or  country  where  the 
laws  recognize  the  validity  of  such  marriages. 

Upon  the  whole  case,  I  am  of  opinion  that  there  is  no  eiTor  in  the 
judgment  of  the  circuit  court  aflirming  tlie  judgment  of  the  county 
court,   and  that  both  be  affirmed  by  this  court. 

The  other  judges  concurred  in  the  ojiinion  of  Christian,  J. 

Judgment  affirmed.  * 

1  Arc.  S.  V.  Tntty.  41  Fed.  7.53;  Dupre  r.  Boulard,  10  La.  Ann.  411;  S.  v. 
Kennedy,  76  N.  C.  251.     But  see  Pearson  r.  Pearson,  51  Cal.  120.  —  Ed. 


SECT.  III.]  IN    KE   GKOVE.  323 


SECTION   III. 

LEGITIMACY    AND    ADOPTION. 


In  re  grove. 

Court  of  Appeal.     1888. 

[Reported  40  Chancery  Division,  216.] 

Further  Consideration.  This  was  an  action  for  the  administration 
of  the  estate  of  Caroline  Emilia  Grove,  a  domiciled  Englishwoman,  who 
died  on  the  29th  of  October,  1866,  at  the  age  of  eighty-eight,  a  lunatic 
and  intestate,  and  possessed  of  considerable  personal  estate. 

In  October,  1867,  as  no  next  of  kin  appeared  to  claim  her  estate, 
letters  of  administration  were  granted  to  the  Solicitor  to  the  Treasury  ; 
and  the  Treasury  shortly  afterwards  took  possession  of  the  estate. 

Two  sets  of  persons  subsequent!}'  set  up  conflicting  claims  to  the 
estate  as  next  of  kin  of  the  intestate,  i.  e.  the  Vaucher  family  and  the 
Falquet  famih',  and  this  action  was  brought  by  a  member  of  the  former 
family  in  1884. 

In  the  course  of  the  proceedings  an  inquir}'  was  directed  as  to  who 
were  the  next  of  kin  of  the  intestate,  and  evidence  was  gone  into  from 
which  it  appeared  that  both  the  Vaucher  family  and  the  Falquet  family 
claimed  through  the  same  man.  Marc  Thomegay,  and  the  same  woman, 
Martha  Powis,  under  the  following  circumstances  :  — 

Marc  Thomegay,  who  was  the  grandfather  of  the  intestate,  was 
born  in  Geneva  of  Swiss  parents,  in  the  year  1712,  and  there  was  no 
question  that  his  domicil  of  origin  was  Genevese.  On  the  13th  of 
August,  1728,  he  was  received  as  a  burgess  of  Geneva.  In  1729,  his 
father,  who  was  a  watchmaker,  died  in  Geneva.  Marc  Thomegay  was 
a  worker  in  gold  and  silver,  and  in  1734,  being  then  twenty-two  years 
of  age,  he  came  to  England,  where  he  remained  until  his  death  in  1779. 
In  the  year  1743  a  private  Act  of  Parliament  was  passed,  whereby 
Peter  Thomegay,  the  brother  of  Marc  Thomegay,  and  four  other 
foreigners  were  naturalized  as  subjects  of  Great  Britian,  but  this  act 
did  not  include  and  made  no  mention  of  Marc  Thomega}-. 

Some  time  after  the  arrival  of  Marc  Thomegay  in  England,  he 
formed  a  connection  with  an  Englishwoman  named  Martha  Powis  ;  he 


324  IN  HE  (JUOVE.  [chap.  VI. 

cohabited  with  her,  for  several  years,  and  had  h}-  her  three  illegitimate 
children,  viz.,  Sarah,  who  was  born  on  the  5th  of  February-,  1744,  and 
was  baptized  on  the  24th  of  the  same  month  by  the  name  of  Sarah 
Thomegay,  in  the  church  of  St.  Mar}-,  Whitechapel,  where  he  presented 
her  under  his  own  name  and  as  his  daughter;  a  son,  who  was  born  on 
the  lltli  of  January,  1745,  and  was  baptized  on  the  16th  of  February 
following,  in  the  same  church  ;  and  another  daughter,  who  was  born 
on  the  14th  of  November,  1747,  and  was  baptized  on  the  13th  of 
December  following,  in  the  parish  church  of  Barking  in  Essex.  These 
two  children  were  also  baptized  under  their  father's  name,  and  as  his 
children. 

Sarah  Thomegay,  on  the  19th  of  December,  1768,  married  M.  Delom, 
a  citizen  of  Vevey,  and  she  was  the  ancestress  of  the  Vaucher  family. 

Elizabeth  Thomegay  married  a  M.  Courbel,  a  citizen  of  Geneva. 

On  the  22d  of  May,  1749,  Marc  Thomegay  was  married  to  an 
Englishwoman  named  Elizabeth  Woodhouse,  in  the  church  of  St. 
Pancras  ;  of  this  marriage  there  was  issue  one  child,  viz.  Margaret 
Sarah  Thomegay,  who  was  born  on  the  22d  of  December,  1749,  and 
was  baptized  on  the  13th  of  January,  1750,  in  the  church  of  St.  Leon- 
ard's, Shoreditch.  Margaret  Sarah  Thomegay.  on  the  13th  of  June, 
1788,  married  an  Englishman  named  William  Grove,  and  she  died  in 
London  in  the  year  1792,  having  had  issue  one  child  onh',  viz.  the 
intestate    Caroline   Emilia   Grove. 

Elizabeth  Woodhouse  died  on  the  26th  of  March,  1752,  and  on  the 
2d  of  February-,  1755,  Marc  Thomegay  married  Martha  Powis,  by 
whom  he  had  formerl}'  had  the  three  illegitimate  children  above 
mentioned. 

Of  this  marriage  there  was  issue  four  children,  one  of  whom  died  in 
infancy.  The  others  were  Jean,  who  was  born  on  the  5th  of  October, 
1756,  and  was  baptized  on  the  29th  of  the  same  month  in  the  church  of 
Westham,  Essex;  Richard,  who  was  born  on  the  11th  of  February, 
1762,  and  was  baptized  on  the  1st  of  March  following,  in  the  church  of 
St.  Leonard's,  Shoreditch  ;  and  Sophie  INIartha,  who  was  born  on  the 
12th  of  November,  1764,  and  was  baptized  on  the  7th  of  December 
following,   in  the  same  church. 

Of  these  three  children,  Sophie  Martha  was  the  only  one  who  left 
issue,  and  she  in  1791  married  Jean  Louis  Falquet,  and  was  the  an- 
cestress of  the  Falquet  family. 

Martha  Thomegay  (nee  Powis)  died  in  the  year  1772. 

In  the  year  1774  Marc  Thomegay  presented  a  petition  to  the  Council 
of  Geneva,  apparently  in  the  interest  of  his  three  children  by  Martha 
Powis  before  his  marriage  with  her,  in  which  he  stated  "  that  in  1734 
he  went  to  England,  where  he  now  is,  that  one  of  the  first  ties  he 
formed  was  an  attachment  for  Miss  Martha  Powis,  whom'  he  intended 
to  marry  as  soon  as  fortune  would  allow  him  to  do  so;  that  thwarted 
b}'  circumstances  and  encouraged  by  their  intention  to  marry  one 
another  as  soon  as  {\u^<v  circumstances  would  pctinit,  they  j'ielded  and 


!SECT.  m.]  IN   RE   GKOVE.  325 

lived  together  for  several  years  as  husband  and  wife  ;  that  of  this 
intercourse  they  had  three  children."  Then  after  stating  the  names 
and  dates  of  the  births  and  baptisms  of  these  children,  as  above  set 
forth,  he  stated  "  that  very  extraordinary  circumstances  thwarted  the 
resolution  he  had  formed  to  marry  ]Martha  Powis,  and  induced  him  to 
marrv  Miss  Elizabeth  Woodhouse,"  and  stated  the  death  of  his  wife 
Elizabeth  and  his  subsequent  marriage  with  Martha  Powis.  Then  the 
petition  stated,  inter  alia,  that  the  petitioner,  having  been  informed 
that  in  Geneva,  his  native  country,  subsequent  marriage  legitimized 
illegitimate-born  children,  made  application  in  order  to  prove,  by  the 
certificates  there  mentioned,  the  births  of  his  son  Marc,  and  his 
daughters  Sarah  and  Elizabeth,  praying  the  Council  to  grant  him 
record  of  his  proofs  and  declarations,  so  that  no  one  might  question 
to  his  above-mentioned  three  children,,  their  condition  of  legitimate 
children  in  Geneva,  his  native  country.  An  order  was  made  by  the 
Council  granting  record  accordingly,  and  the  births  of  tliese  three 
children  were  entered  in  the  register  of  births  of  children  of  Genevese 
parents  born  in  foreign  parts. 

The  statements  contained  in  this  petition  were  borne  out  by  the 
certificates  attached  thereto,  and  these  certificates  were  put  in  evidence 
in  this  action. 

Marc  Thomegay  made  his  will  on  the  9th  of  March,  1779,  describing 
himself  as  of  Tottenham,  in  the  county  of  Middlesex,  and  died  on  the 
2d  of  December,  1779.  From  the  will  it  appeared  that  he  was  carry- 
ing on  business  in  partnership  with  his  son,  and  was  entitled  to  a 
leasehold  house,  workshops,  and  premises  in  Moorfields,  within  the 
parish  of  St.  Leonard's,  Slioreditch.  It  did  not  appear  when  this  lease 
was  granted,  but  in  the  baptismal  certificates  of  1744  and  1745  the 
parents  were  described  as  of  Ayliffe  Street,  and  Moorfields  was  not 
mentioned  in  any  certificate  until  the  year  1750. 

There  was  evidence  that  according  to  the  laws  of  the  canton  of 
Geneva  illegitimate  children  are  legitimated  by  the  subsequent  marriage 
of  their  father  and  mother,  notwiihstanding  the  intervening  marriage 
of  their  father  with  another  woman. 

The  Chief  Clerk,  by  his  certificate  made  in  this  action,  in  substance 
left  to  the  court  the  question  whether  under  these  circumstances  Sarah 
Delom  and  the  other  two  children  born  of  Marc  Thomegay  and  Martha 
Powis  during  their  cohabition  were  to  be  taken  as  legitimate  or  not ; 
and  found  that  if  Sarah  Delom  ought  to  be  treated  as  legitimate,  tlien 
the  next  of  kin  of  the  intestate  were  the  descendants  of  the  said  Sarah 
Delom,  who  were  represented  by  the  plaintiff,  and  that  if  not,  such 
next  of  kin  was  the  Falquet  famih'. 

The  further  consideration  came  on  for  hearing  before  Mr.  Justice 
Stirling  on  the  20th  of  July,   1887.^ 

The  plaintiff  appealed  [from  the  judgment  of  Stirlixg,  J]. 

1  The  arffumeuts  and  the  decision  of  Mr.  Justice  Stirlixg  are  omitted.  —Ed. 


326  IN   RE   GROVE.  [CHAP.   VI. 

Frt,  L.  J.^  I  agree  entirely  with  the  conclusion  arrived  at  by  the 
Lord  Justice,  and  I  am  glad  to  say  that  I  also  agree  in  the  law  which 
he  has  laid  down,  but  the  facts  of  the  case  influence  my  mind  some- 
what differently,  and  I  pick  my  way  through  those  facts  to  the  same 
conclusion  by  a  somewhat  different  course.  I  will,  therefore,  en- 
deavor to  state,  as  briefly  as  I  can,  the  view  I  take  of  this  case. 

The  appellant  claims  through  Sarah  Thomegay,  who  was  born  in 
1741,  in  this  country,  and  was  an  illegitimate  child  of  Marc  Thomegay 
and  Martha  Powis.  At  birth  that  child  took  the  domicil  of  its  mother 
and  it  took  the  status  of  illegitimacy,  according  to  the  law  of  the  domicil 
of  its  mother,  and  it  took  also  the  capacity  to  change  that  status  of 
illegitimacy  for  one  of  legitimacy,  provided  that  according  to  the  law 
of  the  domicil  of  the  father,  the  subsequent  marriage  would  work 
legitimation.  The  position  of  such  a  child,  therefore,  is  curious,  taking 
domicil  and  status  from  the  mother,  but  taking  the  potentiality  of 
changing  its  status  from  the  putative  father.  That  I  take  to  be  the 
law  applicable  to  this  case,  and  that  gives  rise  to  the  first  question, 
what  was  the  domicil  of  the  father  in  the  year  1744? 

It  must  be  taken  that  the  domicil  of  the  father  was  Genevese  at  the 
date  of  the  birth  of  Sarah  in  1744.  If  his  domicil  were  English,  there 
would  be  an  end  of  the  case ;  if  the  domicil  were  Genevese,  as  I  hold, 
then  arises  the  second  question,  which  is  this  :  What  was  his  domicil 
at  the  date  of  the  subsequent  marriage  of  the  parents  in  1755?  It 
appears  to  me  that  the  domicil  governs  the  effects  of  the  marriage. 
That  I  take  to  be  the  general  law,  and  it  is  so  laid  down  by  Mr.  Justice 
Story,  in  the  189th  paragraph  of  his  work  on  Conflict  of  Laws:  "  In 
a  general  sense  the  law  of  the  matrimonial  domicil  is  to  govern  in 
relation  to  the  incidents  and  effects  of  marriage."  If,  therefore,  the 
subsequent  marriage  was  governed  by  the  English  domicil  it  would 
seem  to  follow  that  no  legitimation  can  take  effect.  If.  on  the  con- 
trary, the  subsequent  marriage  is  governed  by  Genevese  domicil,  it 
would  seem  that  subsequent  legitimation  does  take  effect.  It  may  be, 
though  on  this  point  no  evidence  has  been  adduced,  that  the  Genevese 
law  would  recognize  an  P:nglish  marriage  as  legitimating  the  previously 
born  issue.  Whether  that  be  so  or  not  I  do  not  know,  but  even  if  it 
be,  ray  conclusion  is,  that  we  should  not  follow  the  Genevese  law,  if  it 
gave  a  greater  effect  to  a  marriage  contract  in  England  when  the 
parents  have  an  English  domicil,  than  the  English  law  gave  to  it;  and 
for  this  reason,  that  the  State  imposes  on  all  persons  domiciled  in  it, 
its  own  conclusions  as  to  the  effect  of  marriage.  Here  again  I  would 
refer  to  the  same  paragraph  in  Mr.  Justice  Story's  Conflict  of  Laws, 
where,  citing  the  judgment  of  Lord  Rol)ertson.  a  Scotch  judge,  he 
says:  "Marriage  is  a  contract  sui  generis:  and  the  rights,  duties, 
and  obligations  which  arise  out  of  it  are  matters  of  such  importance  to 

1  Concurring  opinions  of  Cotton  ami  Loi-kr,  L.J.I.,  are  omitted.  They  differed 
from  FitY,  L.  J.,  in  holilinij  that  'rh<»nio<:!;ay  was  doiniciled  in  England  af  the  birth  of 
Sarah.     Part  of  the  opinion  of  Fky,  L.  J.,  is  omitted. —  Ei>. 


SECT,  m.]  SCOTT   V.   KEY.  327 

the  well-being  of  the  State,  that  they  are  regulated  not  by  the  private 
contract,  but  by  the  public  laws  of  the  State,  which  are  imperative  on 
all  who  are  domiciled  within  its  territory."  I  would  remark  again,  that 
I  entirely  agree  with  what  has  been  said  by  Lord  Justice  Cotton,  with 
regard  to  the  effect  of  the  cases  of  Munro  v.  Munro,  7  CI.  &  F.  842, 
and  Udny  v.  Udny,  Law  Rep.  1  H.  L.  Sc.  441,  on  this  question  of  law, 
and  I  think  that  they  very  strongly  support  the  conclusion  which  I 
have  endeavored  to  express. 

Now,  that  being  so,  we  come  back  to  the  question  of  fact,  where  was 
Marc  Thomegay  domiciled  in  1755  when  he  contracted  marriage  with 
Martha  Powis  ?  In  my  judgment  his  domicil  was  English.  .  .  .  and 
that  consequently  the  English  law  of  marriage  must  govern  the  effects 
of  the  marriage  then  contracted,  and  that  EngUsh  law  would  not  allow 
subsequent  legitimation.  I  come,  therefore,  to  the  same  conclusion, 
though  by  a  somewhat  different  course,  as  that  of  my  learned  brother. 

Appeal  dismissed  with  costs.^ 


SCOTT   V.    KEY. 

SiTPREME  Court  of  Louisiana.     1856. 

[Reported  11  Louisiana  Annual,  232.] 

Buchanan,  J.^  This  cause  has  already  been  before  this  court,  and 
was  remanded  to  make  proper  parties  defendant.     See  9  La.  Ann.  213. 

Plaintiffs  are  the  surviving  brother  and  sisters  of  Samuel  Estill, 
deceased,  and  the  children  of  a  deceased  brother  of  said  Samuel.  They 
claim  to  be  heirs  at  law  of  Samuel  Estill.  The  defendants  are  the 
curator,  and  the  half-brothers  and  sisters,  heirs  of  one  William  Estill, 
who  was  a  natural  son  of  Samuel  Estill,  but  legitimated  by  a  statute  of 
the  State  (then  territory)  of  Arkansas,  of  which  Samuel  and  William 
Estill  were  at  the  time  residents,  passed  October  27th,  1835,  and  en- 
titled "an  act  to  legitimatize  the  son  of  Samuel  Estill."  For  a  copy  of 
the  said  statute  in  full,  see  the  report  of  this  case  in  9th  La.  Annual. 

The  question  now  presented  for  our  decision  is,  whether  the  statute 
in  question  had  an  extraterritorial  effect,  and  enabled  William  Estill 
to  inherit,  as  the  legitimate  son  of  Samuel  Estill,  the  property  left  by 
the  latter  in  Louisiana.  The  solution  of  this  question  appertains  to  a 
distinction  (which  has  been  recognized  b}'  various  decisions  of  the  Su- 
preme Court  of  Louisiana)  of  statutes  real  and  statutes  personal.  The 
leading  case  on  this  subject  is  Saul  r.  His  Creditors,  5  Mart.  n.  s.,  in 
which  it  was  decided,  that  the  general  law  of  Virginia,  which  renders 

1  Ace.  Munro  v.  Monro,  1  Robt.  H.  L.  492  ;  Smith  v.  Kelly,  23  Miss.  167;  MiUel 
r.  Miller,  91  N.  Y.  315 ;  Dayton  v.  Adkissou,  45  N.  J.  Eq.  603,  17  Atl.  964.  —Ed. 
2  The  statement  of  facts,  arguments,  and  dissenting  opinion  are  omitted. — Ed. 


328  SCOTT    V.    KEY.  [CHAP.  VI, 

propert}'  acquired  during  marriage  the  propcrt}-  of  the  husband,  is  a 
real  statute,  which  did  not  follow  a  couple,  who  had  contracted  mar- 
riage iu  Virginia,  into  the  State  of  Louisiana,  where  they  resided  many 
years,  and  where  the  wife  died  ;  but  that  property  acquired  in  Louisiana 
after  their  removal  thither,  entered  into  the  matrimonial  partnership  of 
our  law,  and  on  the  dissolution  of  the  marriage,  belonged  one-half  to  the 
wife's  heirs.  And  in  the  case  of  Banna  v.  Al[)uente,  6  Mart.  n.  s.  (llie 
same  judge,  Porter,  who  had,  in  the  case  of  Saul,  reviewed  all  the  au- 
thorities, being  the  organ  of  the  court),  it  was  decided  that  the  laws  of 
domicil  of  origin  govern  the  state  and  condition  into  whatever  country 
the  party  removes  ;  in  other  words,  that  such  laws  are  personal  statutes. 
And  those  two  decisions  are  in  harmony  witli  the  definition  b\-  Chief 
Justice  Eustis,  of  the  real  and  personal  statute,  in  the  case  of  tlie 
Augusta  Lisurance  Company  v.  Morton,  in  3  La.  Ann.  426:  '-Those 
laws  are  real,"  says  the  learned  judge,  "in  contradistinction  to  per- 
sonal statutes  which  regulate  directly  property,  without  reference  to  the 
condition  or  capacity  of  its  possessor."'  There  are  some  expressions  of 
Judge  Strawbridge,  in  the  case  of  Brosnahan  r.  Turner,  16  La.  439, 
which  are  relied  upon  b}-  plaintiffs'  counsel,  and  which  are  scarce!}' 
consistent  with  this  definition.  But  the  decision  in  Brosnahan  v.  Tur- 
ner turned  upon  a  totally  different  point,  the  validity  of  a  sheriff's  sale. 
The  remarks  in  Brosnahan  v.  Turner,  as  to  the  incapacity  of  the  testa- 
mentary heirs  of  Villarude  to  inherit  in  Louisiana,  under  a  will 
probated  under  the  authority  of  a  statute  of  Florida,  are  at  best 
but  obiter  dicta,  and  besides  refer  to  a  very  different  state  of  facts 
from  that  presented  in  this  case.  Here,  an  infant,  or  minor,  son  of  a 
resident  of  Arkansas,  born  out  of  wedlock,  was,  by  an  act  of  the  legis- 
lature of  the  country  of  his  domicil,  legitimated,  or  put  upon  the  same 
footing  as  if  his  parents  had  been  married  at  the  time  of  his  birth. 

It  is  admitted  of  record,  that  William  Estill,  then  a  small  child,  Octo- 
ber 27,  1835,  resided  with  his  natural  father,  Samuel  Estill,  in  Ar- 
kansas, who  was  then  a  citizen  of  Arkansas,  and  resided  in  Arkansas, 
and  that  both  of  them  resided  therein  for  several  years  before  1835, 
and  also  continued  to  reside  in  Arkansas  until  some  time  between 
1837  and  1841."  Arkansas  was  then  the  bona  fide  domicil  of  the 
Estills.  at  the  time  of  the  passage  of  the  act  of  the  legislature  in 
question.  William  was,  by  law,  tlie  legitimate  son  of  Samuel  in  Arkan- 
sas. Can  it  be  said  that  he  lost  his  status  by  crossing  the  State  line 
into  the  frontier  parish  of  Carroll,  some  years  afterwards?  We  think 
not.  The  heritable  quality  of  legitimacy  which  he  had  received  from 
the  legislature  of  the  State  of  his  residence  accompanied  him  wlicn 
he  changed  his  domicil. 

The  error  of  the  judgment  appealed  from  consists  in  regarding 
William  Instill  as  illegitimate,  at  the  time  of  his  father's  death.  But  he 
was  not  so.  The  original  taint  of  illegitimacy  had  boon  removed  by 
the  act  of  tlie  legislature.  Legitimacy  and  illegitimacy  are  the  re- 
sult of  positive  laws,  which  differ  very  materially  in  different  countries. 


SECT.  III.]  SCOTT    V.    KEY.  329 

To  illustrate  this  idea,  suppose  William  Estill  had  been  born  in  Louisi- 
ana, and  that  after  his  birth  his  father  and  mother  had  got  married  in 
Louisiana,  and  subsequently  to  their  marriage  removed  with  their  child 
to  Arkansas.  Their  marriage  after  his  birth  would  have  legitimated 
tlieir  oftsprino-  by  the  law  of  their  domicil ;  yet  by  the  law  of  Arkansas 
a  subsequent  marriage  would  have  not  produced  that  effect.  Neverthe- 
less, the  status  of  legitimacy  being  acquired  in  Louisiana  would  have 
accompanied  him  into  Arkansas.  There  are  many  precedents,  in  the 
legislation  of  various  States  of  tliis  Union,  of  legitimation  by  act  of  the 
legislature,  and  particularly  in  Louisiana.  This  seems  identical  with 
the  legitimation  per  rescriiJtum  priiicipis  of  the  Roman  law. 

Voet,  Commentarius  ad  Pandectas,  lib.  25,  tit.  7,  §§  4  and  13. 

If  it  is  true  that  a  general  law  of  the  place  of  domicil,  changing  the 
status  of  its  citizens  according  to  circumstances,  is  a  personal  statute, 
accompanying  tlie  party  to  every  other  country,  provided  the  circum- 
stances which  operate  such  change  have  occurred  before  the  change  of 
domicil,  which  we  consider  to  be  the  doctrine  settled  in  Louisiana,  a 
fortiori,  is  a  special  law,  removing  a  disability  from  a  particular  citizen 
by  name,  such  a  statute?  The  constitutional  power  of  the  legislature 
to  enact  such  exceptional  enabling  statutes  was  drawn  directly  in  ques- 
tion, and  ruled  affirmatively,  in  the  case  of  Pritchard  v.  Citizens  Bank, 
8  La.  133.  The  maxim  cited  by  Story,  Conflict  of  Laws,  §  .51,  from 
BouUenois,  '"  Habilis  vel  inhabilis  in  loco  domicilii,  est  habilis  vel  inha- 
bilis  in  omni  loco,"  must  therefore  be  deemed  law  in  Louisiana. 

And  is  it  not  correct  to  sa}',  that  the  statute  of  Arkansas,  to  legiti- 
mate WilUam  Estill  (which  is  a  personal  statute),  conflicted  with  tiie 
statute  of  distributions  of  Louisiana  (which  is  a  real  statute)  ;  and  con- 
sequently, as  was  held  in  Saul's  case,  is  overruled  by  the  latter  statute  ? 
By  the  Louisiana  statute  of  distributions,  the  legitimate  son  inherits  in 
preference  to  the  brothers  and  sisters  of  the  deceased.  By  the  effect 
of  the  statute  of  Arkansas,  William  Estill  was  the  legitimate  sou  of 
Samuel  Estill.  Upon  the  demise  of  Samuel  Estill  in  Louisiana,  in 
1849,  fourteen  years  after  that  statute,  William  Estill,  as  his  legitimate 
son,  was  his  heir,  b}'  the  law  of  Louisiana. 

In  confirmation  of  this  view  of  the  subject,  we  may  quote  the  lan- 
guage of  the  High  Court  of  Errors  and  Appeals  of  Mississippi,  in  the 
case  of  Smith  v.  Kelly,  23  Miss.  Rep.,  170:  "It  is  a  well  settled 
principle,  that  the  status  or  condition,  as  to  the  legitimacy,  must  be 
determined  by  reference  to  the  law  of  the  country  where  such  status  or 
condition  had  its  origin." 

Judgment  of  the  District  Court  reversed  ;  and  judgment  for  defend- 
ants, with  costs  in  both  cases. 

Spofford,  J.  It  was  competent  for  the  legislature  of  Arkansas,  the 
domicil  of  its  origin,  to  fix  the  status  of  William  Estill. 

In  substance  and  effect,  that  legislature  gave  him  the  status  of  a 
legitimate  son  of  Samuel  Estill. 

The  Arkansas  statute,  legitimating  AVilliam  Estill,  was  a  personal 
statute. 


330  BARNUM   V.    BAENUM.  [CIIAP.  VI. 

Therefore,  the  status  of  a  legitimate  son  of  Samuel  Estill  would  ac- 
company William  Estill  into  whatever  country  he  might  go. 

He  came  hither  with  the  status.  He  inherited,  by  our  law,  from  his 
father,  Samuel  Estill,  because  he  was  to  all  intents  and  purposes  a 
legitimate  son,  having  become  so  by  the  law  of  the  domicil  of  his 
origin,  and  not  in  fraud  of  our  law,  nor  in  violation  of  its  policy. 

I,  therefore,  concur  in  the  opinion  and  judgment  of  Mr.  Justice 
Bdchanan. 

Meerick,  C.  J.,  dissenting. 


BARNUM   V.  BARNUM. 
Court  of  Appeals  of  Maryland.    1875. 

[Reported  42  Maryland,  251.] 

This  was  a  bill  for  the  distribution  of  the  property  of  David  Barnum. 
John  R.  Barnuni  claimed  a  distributive  sliare  as  grandson  of  David  and 
son  of  Richard  Barnum.  John  R.  Barnum  was  born  in  Arkansas, 
while  his  father  was  domiciled  there  ;  the  court,  however,  decided,  that 
his  parents  were  not  married,  and  that  he  was  illegitimate.  He  having 
died  during  the  progress  of  the  suit,  his  representative  appealed.  ^ 

Alvey,  J.  It  is  contended  that  notwithstanding  there  may  have  been 
no  marriage  between  Dr.  Barnum  and  Caroline  Butler,  yet  by  the  opera- 
tion of  the  act  of  the  legislature  of  Arkansas,  before  referred  to,  John 
R.  Barnum  was  rendered  legitimate,  as  if  a  valid  marriage  had  taken 
place,  and  was  therefore  capable  of  taking  whatever  right  that  would 
or  could  devolve  on  any  legitimate  child  of  his  father ;  that  the  act  was 
retroactive,  and  related  back  to  the  time  of  the  birth  of  the  child  de- 
clared to  be  heir. 

In  this,  however,  we  do  not  agree  with  the  counsel  of  the  claimants. 
As  we  have  seen,  the  act  makes  no  reference  to  any  marriage,  and  in 
no  sense  could  operate  to  confirm  any  defective  or  imperfect  marriage. 
Its  operation  does  not  even  depend  upon  the  fact  that  John  R.  Barnum 
was  the  child  of  Richard  Barnum.  It  simply,  by  force  of  the  law  itself^ 
and  not  of  the  circumstances  of  birth  or  relationship,  gave  to  John  R. 
Barnum  a  personal  status,  with  capacity  to  inherit  from  Richard  Bar- 
num as.  heir.  This  act  could  have  no  extraterritorial  operation  what- 
ever^ except  as  to  any  rights  that  may  have  been  acquired  under  it,  in 
the  State  of  Arkansas.  ^As  to  such  rights  they  would  be  respected 
everywhere.  Sto.  Confl.  L.,  §  §  101,  102.  But  as  to  capacity  to 
acquire  property  beyond  the  State  passing  the  act,  by  virtue  of  the 
particular  status  given  the  party,  that  the  legislature  could  not  confer. 
Even  if  the  act  had  professed  to  legitimate  John  R.  Barnum,  without 

1  This  short  statemeut  is  substituted  for  that  of  tho  reportpr.  Only  so  mucli  of  the 
opinion  as  discusses  the  legitimacy  of  John  R.  Barnum  is  given. — Ed. 


SECT.  III.]  BOSS   V.    EOSS.  331 

reference  to  previous  marriage,  it  could  have  no  operation  liere,  and  no 
rio-hts  involved  in  this  case  could  be  affected  by  it.  This  would  seem 
to  be  clear  both  on  reason  and  authority.  5  Com.  Dig.  Parliament 
(K),  p.  301  ;  Birtwhistle  v.  Vardill,  5  B.  &  Cr.,  438  ;  Houlditch  v.  Mar- 
quess of  Donegall,  2  Clark  &  Finn.,  476  ;  Smith  v.  Derr's  Adm 'rs,  34 
Penn.  St.,  126  ;  Sto.  Confl.  L.,  §§  87,  87  a. 

The  claim,  therefore  made  in  the  right  of  John  K.  Barnum,  must  be 
rejected.^ 


ROSS   V.    ROSS. 

Supreme  Judicial  Court  of  Massachusetts.     1880. 

[Reported  129  Massachusetts,  243.] 

Gray,  C.  J.^  This  case  presents  for  adjudication  the  question  which 
it  was  attempted  to  raise  in  Ross  v.  Ross,  123  Mass.  212,  namely, 
whether  a  child  adopted,  with  the  sanction  of  a  judicial  decree,  and 
with  the  consent  of  his  father,  by  another  person,  in  a  State  where  the 
parties  at  the  time  have  their  domicil,  under  statutes  substantially 
similar  to  our  own,  and  which,  like  ours,  give  a  child  so  adopted  the 
same  rights  of  succession  and  inheritance  as  legitimate  offspring  in  the 
estate  of  the  person  adopting  him,  is  entitled,  after  the  adopting  parent 
and  the  adopted  child  have  removed  their  domicil  into  this  Common- 
wealth, to  inherit  the  real  estate  of  such  parent  in  this  Commonwealth 
upon  his  dying  here  intestate. 

The  question  how  far  a  child,  adopted  according  to  law  in  the  State 
of  the  domicil,  can  inherit  lands  in  another  State,  was  mentioned  by 
Lord  Brougham  in  Doe  v.  Vardill,  7  CI.  &  Fin,  895,  898,  and  by  Chief 
Justice  Lowrie  in  Smith  v.  Derr,  34  Penn.  St.  12G,  128,  but,  so  far  as 
we  are  informed,  has  never  been  adjudged.  It  must  therefore  be  de- 
termined upon  a  consideration  of  general  principles  of  jurisprudence, 
and  of  the  judicial  application  of  those  principles  in  analogous  cases. 

As  a  general  rule,  when  no  rights  of  creditors  intervene,  the  succes- 
sion and  disposition  of  personal  property  are  regulated  b}'  the  law  of 
the  owner's  domicil.  It  is  often  said,  as  in  Cutter  v.  Davenport,  1 
Pick.  81,  86,  cited  by  the  tenent,  to  be  a  settled  principle,  that  "the 
title  to  and  the  disposition  of  real  estate  must  be  exclusively  regulated 
b}'  the  law  of  the  place  in  which  it  is  situated."  But  so  general  a 
statement,  without  explanation,  is  liable  to  mislead.  The  question  in 
that  case  was  of  the  validity  of  an  assignment  of  a  mortgage  of  real 
estate  ;  and  there  is  no  doubt  that  by  our  law  the  validity,  as  well  as 
the  form,  of  an}-  instrument  of  transfer  of  real  estate,  whether  a  deed 
or  a  will,  is  to  be  determined  by  the  lex  rei  sitce.     Goddard  v.  Sawyer, 

1  Ace.  Lingen  v.  Lingen,  45  Ala.  410.  —  Ed. 

2  Part  of  the  opiniou  only  is  given.  —  Ed. 


332  BOSS  V.  EOBs.  [chap.  VI. 

9  Allen,  78 ;  Sedgwick  v.  Lafliu,  10  Allen,  430,  433  ;  United  States 
V.  Crosby,  7  Cranch,  115;  Clark  v.  Graham,  6  Wheat.  577;  Kerr  v. 
Moon,  9  Wheat.  oQb  ;   McCormick  v.  8ullivant,  10  Wheat.   192. 

It  is  a  general  principle,  that  the  status  or  condition  of  a  person 
the  relation  in  which  he  stands  to  another  person^,_and  b\'  which  he  Ts 
quahiied  or  made  capable  to  take  certain  rights  in  that  otiier's  ijroi)ertv 
is  fixed  by  the  law  oX_thejiojBM;i I  ;  and  rliaftlilslstoiivs  aiii^ipaclty~are 
_to_be  recognized  and  upheld  in  every  other  State^so_far  as  they  are  not 
inconsistent  with  its  own  laws  and  policy.  Subject  to  this  limitation, 
upon  the  death  of  anyman,  the  status  of  those  who  claim  succession  or 
inheritance  in  his  estate  is  to  be  ascertained  by  the  law  under  which  that 
status  was  acquired  ;  his  personal  property  is  indeed  to  be  distributed 
according  to  the  law  of  his  domicil  at  the  time  of  his  death,  and  his  real 
estate  descends  according  to  the  law  of  the  place  in  which  it  is  situated  ; 
but,  in  either  case,  it  is  according  to  those  provisions  of  that  law  which 
regulate  the  succession  or  the  inheritance  of  persons  having  such  a 
status. 

The  capacity  or  qualification  to  inherit  or  succeed  to  propert}',  which 
is  an  incident  of  the  status  or  condition,  requiring  no  action  to  give  it 
effect,  is  to  be  distinguished  from  the  capacity  or  competency  to  enter 
into  contracts  that  confer  rights  upon  others.  A  capacit}'  to  take  and 
have  differs  from  a  capacity  to  do  and  contract ;  in  short,  a  capacity'  of 
holding  from  a  capacity  to  act.  Generally  speaking,  the  validitj-  of  a 
personal  contract,  even  as  regards  the  capacity  of  the  party  to  make  it, 
as  in  the  case  of  a  married  woman  or  an  infant,  is  to  be  determined  by 
the  law  of  the  State  in  which  it  is  made.  Milliken  v.  Pratt,  125  Mass. 
374,  and  authorities  cited. "^ 

The  legal  adoption  by  one  person  of  the  offspring  of  another,  giving 
him  the  status  of  a  child  and  heir  of  the  parent  by  adoption,  was  un- 
known to  the  law  of  P^ngland  or  of  Scotland,  but  was  recognized  b}-  the 
Roman  law,  and  exists  in  many  countries  on  the  continent  of  Europe 
which  derive  their  jurisprudence  from  that  law.  Co.  Lit.  7  b,  237  b  ;  4 
Phillimore,  §  531  ;  Mackenzie's  Roman  Law,  120-124  ;  Whart.  Confl. 
§  251.  It  was  long  ago  introduced,  from  the  law  of  France  or  of  Spain, 
into  Louisiana  and  Texas,  and  more  recently,  at  various  times  and  by 
different  statutes,  throughout  New  England,  and  in  New  York,  New 
Jersey,  Pennsylvania,  and  a  large  proportion  of  the  other  States  of  the 
Union.  Fuselier  v.  Masse,  4  La.  423  ;  Vidal  v.  Commagere,  13  La. 
Ann.  516  ;  Teal  v.  Sevier,  26  Tex.  516  ;  Miss.  St.  1846  ;  Hutch.  Miss. 
Code,  501  ;  Alabama  Code  of  1852,  §  2011  ;   N.  Y.  St.  1873,  e.  830; 

^  The  court,  in  omitted  portions  of  the  opinion,  cited  and  discussed  at  length  the 
following  cases,  among  others:  Doe  v.  Vardill,  2  CI.  &  F.  571  ;  Shedden  v  Tatrick,  5 
Paton,  194,  1  Macq.  Mb  ;  Stratbmore  Peerage,  6  Paton,  645  ;  Kose  v.  Ross,  4  Wils.  &  Sh. 
289  ;  Don's  Estate,  4  Drewry,  194  ;  Skottowe  v.  Young,  L.  R.  11  Ya{.  474 ;  Loring  i-. 
Thorndike,  5  All.  257  ;  Smith  v.  Kelly,  23  Miss.  167;  Scott  v.  Key,  11  La.  Ann.  232  : 
Barnnm  i;.  Ranium,  42  Md.  251  ;  Smith  v.  Derr,  34  Pa.  St.  126  ;  Harvey  v.  Ball,  32 
Ind.  98;  Lingen  r.  Lingen,  45  Ala.  410;  Com.  v.  Nancrede,  32  Pa.  St.  389 ;  Shafer  v. 
Enea,  54  Pa.  St.  304.  —  Ed. 


SECT.  III.]  ROSS   V.    ROSS.  333 

N.  J.  Rev.  Sts.  of  1877,  §  1345  ;  Penn  St.  1855,  e.  456  ;  Purd.  Dig.  61 ; 
1  Southern  Law  Rev.  (N.  S.)  70,  79  and  note,  citing  statutes  of  other 
States.  One  of  the  first,  if  not  the  very  first,  of  tlie  States  whose  juris- 
prudence is  based  exclusively  on  the  common  law,  to  introduce  it,  was 
Massachusetts.  .  .  . 

The  statute  of  Pennsylvania  of  1855,  which  is  made  part  of  the  case 
stated,  and  under  which  the  demandant  was  adopted  by  the  intestate  in 
1871,  while  both  were  domiciled  in  that  State,  corresponds  to  these 
statutes  of  this  Commonwealth  in  most  respects.  Like  them,  it  per- 
mits any  inhabitant  of  the  State  to  petition  for  leave  to  adopt  a  child  ;  it 
requires  the  petition  to  be  presented  to  a  court  in  the  county  where  the 
petitioner  resides  ;  it  requires  the  consent  of  the  parents  or  surviving  par- 
ent of  the  child  ;  it  authorizes  the  court,  upon  being  satisfied  that  it  is  fit 
and  proper  that  such  adoption  should  take  effect,  to  decree  that  the 
child  shall  assume  the  name,  and  have  all  the  rights  and  duties  of  a 
child  and  heir,  of  the  adopting  parent ;  and  it  makes  the  record  of  that 
decree  evidence  of  that  fact. 

JThe  statuj^e^f^misyjvania  differs  from  our  own  only  in  not  requir- 
ing  the^onaent-of-the-pfetitioner's  wife,  and  of  the  child  if  more  than 
fourteen  yearsof_age  ;  in  omitting  the  words  "as  if  born  in  lawful 
wedlock  ^''Tn  defining  the  effect  of  the  adoption  ;  in  also  omitting  any 
exception  to  the  adopted  child's  capacity  of  inheriting  from  the  adopt- 
ing parent ;  and  in  expressly  providing  that,  if  the  adopting  parent  has 
other  children,  the  adopted  child  shall  share  the  inheritance  with  them 
in  case  of  intestacy,  and  he  and  they  shall  inherit  through  each  other 
as  if  all  had  been  lawful  children  of  the  same  parent.  .  .  . 

The  lq,w  of  the  domicil_of_the  par ties_is^  generally  the  rule  which 
governs_tlie  .faieatjoji-Qf-thiL^tatus  of  a  child  b^'  adoption.  Foster  v. 
Waterman,  124  Mass.  592  ;  4  Phillimore,  §  SSTT  WTiart.  Confl.  §  251. 
The  status  of  the  demandant,  as  adopted  child  of  the  intestate,  in  the 
State  in  which  both  were  domiciled  at  the  time  of  the  adoption,  was 
acquired  in  substantially  the  same  manner,  and  was  precisely  the  same 
so  far  as  concerned  his  relation  to,  and  his  capacity  to  inherit  the  estate 
of,  the  adopting  father,  as  that  which  he  might  have  acquired  in  this 
Commonwealth  had  the  parties  been  then  domiciled  here.  In  this  \\^ 
respect,  there  is  no  conflict  between  the  laws  of  the  two  Common- 
wealths. The  difference  between  them  in  regard  to  the  consent  of  the 
wife  of  the  adopting  father,  and  to  the  inheritance  of  estates  limited  to 
heirs  of  the  bod}',  or  inheritance  from  the  kindred,  or  through  the 
children,  of  such  father,  are  not  material  to  this  case,  in  which  the  only 
Question  is  whether  the  adopted  child  or  a  brother  of  the  adopting 
father  has  the  better  title  to  land  in  the  absolute  ownership  of  such 
father  at  the  time  of  his  death.  \  Whatever  effect  the  want  of  formal 
consent,  on  the  part  of  the  wife  of  the  intestate,  to  the  adoption  of  the 
demandant,  might  have,  if  she  were  claiming  any  interest  in  her  hus- 
band's estate,  it  can  have  no  bearing  upon  this  controversy  between  the 
adopted  child  and  a  collateral  heir. 


334  Koss  V.  ROSS.  [chap.  yi. 

The  tenant  in  his  argument  laid  much  stress  on  the  words  of  the  stat- 
ute of  descents  and  of  the  statutes  of  adoption  of  this  Commonwealth. 

The  statute  of  descents  which  was  in  force  at  the  time  of  the  death 
of  the  intestate  in  1873  enacts  that  when  a  person  dies  intestate,  seised 
of  any  real  estate,  it  shall  descend,  subject  to  his  debts,  and  saving 
rights  of  homestead,  "  in  the  manner  following  :  First.  In  equal  shares 
to  his  children,  and  to  the  issue  of  an}-  deceased  child  by  right  of  rep- 
resentation ;  and  if  there  is  no  child  of  the  intestate  living  at  his 
death,  then  to  all  his  other  lineal  descendants,"  etc.  "Second.  If  he 
leaves  no  issue,  then  to  his  father.  Third.  If  he  leaves  no  issue  nor 
father,  then  in  equal  shares  to  his  mother,  brothers,  and  sisters,"  etc. 
"Eighth.  If  the  intestate  leaves  a  widow  and  no  kindred,  his  estate 
shall  descend  to  his  widow ;  and  if  the  intestate  is  a  married  woman 
and  leaves  no  kindred,  her  estate  shall  descend  to  her  husband.  Ninth. 
If  the  intestate  leaves  no  kindred,  and  no  widow  or  husband,  his  or  her 
estate  shall  escheat  to  the  Commonwealth."  Gen.  Sts.  c.  91,  §  1.  See 
also  St.  1876,  c.  220. 

But  this  section  must  be  understood  as  merely  laying  down  general 
rules  of  inheritance,  and  not  as  completely  and  accurately  defining  how 
the  status  is  to  be  created  which  gives  the  capacity  to  inherit.  It  does 
not  undertake  to  prescribe  who  shall  be  considered  a  child,  or  a  widow, 
or  a  husband,  or  what  is  necessary  to  constitute  the  legal  relation  of 
husband  and  wife,  or  of  parent  and  child.  Those  requisites  must  be 
sought  elsewhere.  The  words  "children"  and  "child,"  for  instance, 
in  the  first  clause,  "  issue,"  in  the  phrase  "if  he  leaves  no  issue,"  in 
subsequent  clauses,  and  "kindred,"  in  the  last  two  clauses  of  this 
section,  clearly  include  a  child  made  legitimate  by  the  marriage  of  its 
parents  and  acknowledgment  by  the  father  after  its  birth  under  §  4  of 
the  same  chapter,  or  a  child  adopted  under  the  provisions  of  c.  110  of 
the  General  Statutes,  or  c.  310  of  the  Statutes  of  1871. 

These  statutes,  after  providing  how  a  child  may' be  adopted  in  this 
Commonwealth  with  the  sanction  of  a  decree  of  the  Probate  Court  in 
the  county  in  which  the  adopting  parent  resides  (or,  under  the  St.  of 
1871,  in  the  county  where  the  child  resides  if  the  adopting  parent  is 
not  an  inhabitant  of  this  Commonwealth),  enact  that  a  child  "so 
adopted  "  shall  be  deemed,  for  the  purpose  of  inheritance,  and  other 
legal  consequences  of  the  natural  relation  of  parent  and  child,  to  be 
the  child  of  the  parent  by  adoption.  St.  1851,  c.  324, §  6  ;  Gen.  Sts.  c. 
110,  §  7;  St.  1871,  c.  310,  §  8.  It  is  argued  that  the  words  "so 
adopted  "  imply  that  children  otherwise  adopted  are  incapable  of  in- 
heriting lands  in  this  Commonwealth.  But  it  appears  to  us  that  these 
words,  in  the  connection  in  which  they  stand,  warrant  no  such  implica- 
tion ;  and  that  the  legislature,  throughout  these  statutes,  had  solely  in 
view  adoption  by  or  of  inhabitants  of  tliis  Commonwealth, ^and  did  not 
intend  either  to  regulate  the  manner,  or  to  define  the  effects,  of  adop- 
tion by  and  of  inhabitants  of  other  States  according  to  the  law  of  their 
douiicil.  y 


SECT.  III.]  ELYTHE   V.   AYKES.  335 

"We  are  not  aware  of  any  case,  in  England  or  America,  in  which  a 
chant^e  of  status  in  the  country  of  the  domicil,  with  the  fornuilities 
prescribed  lay  its  laws,  has  not  been  allowed  full  effect,  as  to  the  capac- 
ity thereby  created  of  succeeding  to  and  inheriting  property,  real  as 
well  as  personal,  in  any  other  country  the  laws  of  which  allow  a  like 
chano-e  of  status  in  a  like  manner  with  a  like  effect  under  like  circum- 
stances. 

"We  are  therefore  of  opinion  that  the  legal  status  of  child  of  the  intes- 
tate, once  acquired  by  the  demandant  under  a  statute  and  by  a  judicial 
decree  of  the  State  of  Pennsylvania,  while  the  parties  were  domiciled 
there,  continued  after  their  removal  into  this  Commonwealth,  and  that 
by  virtue  thereof  the  demandant  is  entitled  to  maintain  this  action. 

It  is  worthy  of  mention  (although  it  cannot  of  course  affect  the  rights 
of  inheritance  which  had  absolutely  vested  on  the  death  of  the  intes- 
tate ;  Tirrel  v.  Bacon,  3  Fed.  Rep.  62)  that  by  a  recent  statute  of  this 
Commonwealth  "  any  inhabitant  of  any  other  State,  adopted  as  a  child 
in  accordance  with  the  laws  thereof,  shall,  upon  proof  of  such  fact,  be 
entitled  in  this  Commonwealth  to  the  same  rights,  as  regards  succes- 
sion to  property,  as  he  would  have  enjoyed  in  the  State  where  such 
act  of  adoption  was  executed,  except  in  so  far  as  they  conflict  with  the 
provisions  of  this  act."     St.  1876,  c.  213,  §  11. 

Judgment /or  the  demandant.^ 


BLYTHE   V.   AYRES. 
SuPREMK  Court  of  California.     1892. 

[Reported  96  California,  532.] 

GARorTTE,  J.^     This  is  an  action  instituted  under  section  1664  of 

the  Code  of  Civil  Procedure  by  the  plaintiff,    a_  minor,  throughji^er 

guardian,  to  determine  the  heirship  and  title  to  the  estate  of  Thomas  H. 
BlytHeTdeceased.  .  .  .  Plaintiffs  claim  is  based  upon  sections  230  and 
1387,  respectively,  of  the  Civil  Code  of  California.  Section  230  reads 
as  follows :  "  The  father  of  an  illegitimate  child,  by  publicly  acknowl- 
edging it  as  his  own,  receiving  it  as  such,  with  the  consent  of  his  wife, 
if  he  is  married,  into  his  family,  and  otherwise  treating  it  as  if  it  were 
a  legitimate  child,  thereby  adopts  it  as  such  ;  and  such  child  is  there- 
upon deemed  for  all  purposes  legitimate  from  the  time  of  its  birth. 
The  foregoing  provisions  of  this  chapter  do  not  apply  to  such  an 
adoption."  Section  1387,  as  far  as  it  pertains  to  the  matters  involved 
in  this  Htigation,  provides :  "  Every  illegitimate  child  is  an  heir  of  the 

1  Ace.  Van  Matre  v.  Sankey,  148  HI.  536,  36  N.  E.  628  ;  Gray  v.  Holmes.  57  Kan. 
217,  45  Pac.  596  ;  Melvin  v.  Martin,  18  R.  I.  650,  30  Atl.  467.  And  see  Estate  of  Sun- 
derland, 60  la.  732,  13  N.  "W.  655.  — Ed. 

2  Part  of  the  opinion  is  omitted.  —  Jl.z. 


336  BLYTHE    V.    AYEES,  [CHAP.  VI, 

person  who,  in  writing,  signed  in  the  presence  of  a  competent  witness, 
acknowledges  himself  to  be  the  father  of  such  child."  .   .   . 

The  facts  found  by  the  court  which  face  us  while  we  are  engaged  in 
a  consideration  of  the  first  branch  of  this  subject  ma}'  be  succinctly  and 
substantially  stated  as  follows  :  (1)  That  plaintiff  was  born  in  England, 
upon  December  18,  1873,  and  was  the  issue  of  Thomas  H.  Blythe  and 
Julia  Perry;  (2)  that  Julia  Perry  was  a  native  of  England,  domiciled 
therein,  and  continued  to  there  reside  until  one  month  after  the  death 
of  said  Blythe  ;  (3)  that  plaintiff  remained  in  England  until  after  the 
death  of  Blythe,  when  she  came  to  California,  and  said  Blythe  was 
never  at  any  time  within  any  of  the  countries  of  Europe  after  the  29th 
da}:  of  August,  1873  ;  (4)  that  said  Blythe  was  a  citizen  of  the  United 
Slates'  aiid  of  the  State  of  California,  domiciled  in  said  State,  and  died 
intestate  therein  April  4.  1883,  leaving  surviving  him  no  wife,  no  father, 
no  mother,  and  no  child,  save  and  except  said  Florence  Blythe,  the 
plaintiff  herein  ;  (5)  that  said  Thomas  H.  Blythe  and  said  Julia  Perry 
never  were  married,  ancLsaid  plaintiff  was  begotten  while  sa]d  Jilythe 
was  temporarily  sojourning  in  England,  and  was  born  after  said  Blythe's 
return  to  California,  and  that  said  Blythe  never  was  married. 

Before  passing  to  the  merits  of  the  discussion,  we  pause  a  moment  to 
say  that  the  verb  '^  adopts,"  as  used  in  section  230,  is  used  in  the  sense 
of  "legitimates,"  and  that  the  acts  of  the  father  of  an  illegitimate  child, 
if  filling  the  measure  required  by  that  statute,  would  result,  strictly 
speaking,  in  the  legitimation  of  such  child,  rather  than  in  its  adoption. 
Adoption,  properly  considered,  refers  to  persons  who  are  strangers  in 
blood ;  legitimation,  to  persons  where  the  blood  relation  exists.  (See 
law  dictionaries,  —  Bouvier's,  Black's,  Anderson's,  and  Rapalje's.) 
This  is  the  distinguishing  feature  between  adoption  and  legitimation,  as 
recognized  by  all  the  standard  law  writers  of  the  day  who  have  written 
upon  the  subject ;  and,  for  the  reason  that  the  text  writers  and  the 
decisions  of  courts  to  which  we  shall  look  for  light  and  counsel  treat  the 
subject  as  a  question  of  legitimation,  we  shall  view  the  matter  from  that 
stand})oint. 

The  section  is  broad  in  its  terms.  It  contains  no  limitations  or  con- 
ditions, and,  to  the  extent  of  the  power  vested  in  the  legislature  of  the 
State,  applies  to  all  illegitimates,  wherever  located,  and  wherever  born. 
The  legislature  has  not  seen  fit  to  make  any  exception  to  its  operation, 
and,  as  was  said  by  Taney,  C.  J.,  in  Brewer  v.  Blougher,  14  Pet.  178, 
when  considering  a  quite  similar  provision  of  a  statute:  '•  In  the  case 
before  us  the  words  are  general,  and  include  all  persons  who  come 
within  the  description  of  illegitimate  childnMi  ;  .  .  .  and  when  the 
legislature  speaks  in  general  terms  of  children  of  that  description,  with- 
out making  any  exceptions,  we  are  bound  to  sui)pose  they  design  to 
include  tlie  wliolc  class."  Bar,  in  his  work  on  International  Law  ([lage 
434),  says:  '•  Legitimation  of  bastards,  either  by  subseijuent  marriage 
or  by  an  act  of  the  government  {rescHptinn  princi/ns),  is  nothing  but 
a  legal  equalization   of  certain  children  illegitimately  begotten  with 


SECT.  III.l  BLYTHE    V.    AYRES. 


337 


legitimate  cliildren."     In  otlier  words,  the  object  and  effect  of  section 
230  is  to  change  the  status  and  capacity  of  an  illegitimate  child  to  the   ^ 
status  and  capacity  of  a  child  born  in  lawful  wedlock.  .  .  . 

The  contention  of  appellants  that  the  status  of  a  person  residing  in  a 
foreign  country,  and  a  subject  thereof,  cannot  be  changed  by  acts  per- 
formed in  California  under  a  provision  of  the  law  of  our  State  legisla- 
ture, cannot  be  supported  as  a  rule  without  many  exceptions,  and  to 
the  extent  of  those  exceptions  a  State  law  must  be  held,  by  its  own 
courts  at  least,  to  have  extraterritorial  operation  ;  and  this  principle  of 
the  foreign  operation  of  State  laws  even  goes  to  the  extent  that  in  many 
instances  such  laws  are  recognized  and  given  effect  by  the  courts  of 
that  particular  foreign  jurisdiction.  The  doctrine  of  extraterritorial 
operation  of  State  laws  is  fully  exemplified  in  the  case  of  Hoyt  v. 
Thompson,  5  N.  Y.  340.  .  .  . 

Section  215  of  the  Civil  Code  is  as  follows:   "A  child  born  before 
wedlock  becomes  legitimate  by  the  subsequent  marriage  of  its  parents."      ^   u)  \,^  \rU^^ 
This  section  takes  a  wide  range.     Its  operation  is  not  confined  within 
State  lines.     It  is  as  general  as  language  can  make  it.     Oceans  furnish 
no  obstruction  to  the  effect  of  its  wise_andj3eneficent   proyisionsT  it  fs  __     ,  1,1,^ 

■manna_tojhebastards^^  iFBlythe,  subsequent  to  the  birth  oiA^  r^^^ 

oTplaintitt;  had  retlTrned  to  England,  and  married  Juha  Perry,  such 
marriage,  under  the  provision  of  law  just  quoted,  ipso  facto  would  have 
resulted  in  the  legitimation  of  Florence  Blythe.  Then,  in  answer  to 
the  interrogatory  of  appellants  already  noticed,  we  say  that  she  was  so 
domiciled  that  by  the  laws  of  California  she  could  have  been  changed 
from  bastardy  to  legitimacy.  Our  statute,  conjoined  with  principles  of 
international  law,  would  have  changed  her  bastardy  to  legitimacy  in  the 
world  at  large  ;  and  regardless  of  international  law,  and  regardless  of 
all  law  of  foreign  countries,  our  statute  law  alone  would  have  made  her 
legitimate  in  the  world  at  large,  whenever  and  however  that  question 
should  present  itself  in  the  courts  of  California.  And  we  also  have 
here  a  most  striking  illustration  of  the  extraterritorial  operation  of 
California  law.  We  have  the  effect  of  a  statute  of  this  State  attaching 
to  a  state  of  facts  where  the  mother  and  child  were  never  in  California, 
but  residing  and  domiciled  in  England,  and  the  marriage  taking  place 
in  England  ;  and  California  law,  as  stated,  has  the  effect  upon  that 
child  to  give  it  a  different  domicil,  and  completel}'  change  its  status. 
Such  would  not  only  be  the  effect  of  this  law  upon  the  child  viewed  by 
California  courts,  but  such  would  be  its  effect  viewed  by  the  courts  of 
England,  where  the  child  was  domiciled,  and  that,  too,  notwithstanding 
no  provisions  of  law  are  there  found  for  the  legitimation  of  bastards. 
This  assumption  of  Blythe's  marriage  to  Julia  Perry,  in  its  facts,  forms 
an  exact  photograph  of  the  celebrated  case  of  Munro  v.  Munro,  found 
in  1  Rob.  App.  492  ;  a  case  crystallizing  the  judicial  thought  of  the  age 
upon  the  subject,  and  commanding  the  respect  of  all  writers  and  judges 
upon  the  law  of  domicil.   .   .   . 

Appellants  insist  that  the  domicil  of  the  child  irrevocably  fixes  that 
child's  status.     In  this  case,  subsequent  to  the  child's  birth,  Julia  Ferry 


338  BLYTHE    V.   AYEES.  [CHAP.  VI. 

married  a  domiciled  Englishman  ;  hence  her  domicil  was  permanently 
established  in  England,  and  for  that  reason  the  child's  domicil,  being 
the  mother's  domicil,  was  permanentl}'  established  there.  Under 
appellants'  reasoning  this  state  of  facts  would  forever  debar  the  child 
from  legitimation,  for  even  its  presence  in  California  would  avail  noth- 
ing as  against  its  English  domicil.  If  such  be  good  law,  section  226 
of  the  Civil  Code,  expressh'  authorizing  the  adoption  of  minors  of  other 
States,  is  bad  law,  for  it  is  squarely  in  conflict  with  those  views.   .  .  . 

"We  have  quoted  thus  extensively  from  the  authorities  upon  the  sub- 
ject of  domicil  as  specially  bearing  upon  the  question  of  legitimatio 
per  suhsequens  matrimonium  for  the  reason  that  we  are  unable  to 
perceive  any  difference  in  the  general  principles  of  law  bearing  upon 
that  character  of  legitimation  and  in  those  principles  bearing  upon 
other  forms  of  legitimation  authorized  by  the  same  statute.  The  only 
distinction  claimed  by  appellants  is  that  legitimation  founded  upon 
subsequent  marriage  is  based  upon  the  fiction  of  law  that  a  previous 
consent  existed,  and  the  marriage  related  back  to  that  time.  Upon 
this  point  it  would  seem  all-sufficient  to  say  that  our  statute  does  not 
recognize  such  a  fiction,  and  its  effective  operation  in  no  wise  depends 
upon  the  assumption  of  its  presence.  Times  are  not  what  they  once 
were,  and  we  live  in  an  age  too  practical  to  build  our  law  upon  the 
unstable  foundation  of  fictions.  .  .  . 

Legitimation  is  the  creature  of  legislation.  Its  existence  is  solely 
dependent  upon  the  law  and  policy  of  each  particular  sovereignty.  The 
law  and  policy  of  this  State  authorize  and  encourage  it,  and  there  is  no 
principle  upon  which  California  law  and  policy,  when  invoked  in  Cali- 
fornia courts,  shall  be  made  to  surrender  to  the  antagonistic  law  and 
policv  of  Great  Britain.  .  .  . 

Plaintiff  was  the  child  of  Blytho,  who  was  a  domiciled  citizen  of 
the  State  of  California.  She  founds  her  claim  upon  the  statutes  of 
this  State,  and  is  now  here  invoking  the  jurisdiction  of  the  courts 
of  this  State.  It  is  a  question  of  California  law,  to  be  construed  in 
California  courts,  and  we  see  nothing  in  our  constitution  or  statutory 
law,  or  in  international  law,  to  have  prevented  Blythe  from  making  the 
plaintiff  his  daughter  in  every  sense  that  the  word  implies.  In  conclu- 
sion, wc  hold  that  Blythe,  being  domiciled  in  the  State  of  California 
both  at  the  time  of  the  birth  of  plaintiff  and  at  the  time  he  performed 
the  acts  which  it  is  claimed  resulted  in  the  legitimation  of  i)laintiff,  and 
California  law  authorizing  the  legitimation  of  bastards  by  the  doing  of 
certain  acts,  it  follows  that  Florence  Blythe,  the  plaintiff,  at  all  times 
was  possessed  of  a  capacity  for  legitimation  under  section  230  of  the 
Civil  Code  of  this  State.^ 

1  Upon  an  examination  of  the  evidence,  the  learned  judge  decided  that  Blythe  had 
done  all  things  required  bv  §  230  to  legitimate  his  daughter.  Paterson  and  Sharp. 
STEIN,  JJ.,  concurred.  McFauland  and  De  Haven.  JJ.,  held  that  the  acts  required 
for  legitimation  under  §  230  had  not  taken  place,  but  concurred  in  the  result  on  the 
gronn'd  that  plaintiff  was  heir  under  §  1387.  Beattt,  C.  J.,  and  Habkison,  J.,  did 
not  ait.  — Ed. 


SECT.  I.l  CLARK   V.   GEAHAM.  339 


CHAPTER  YIL 

EIGHTS    OF   PROPEKTY. 


SECTION    I. 

IMMOVABLES. 


CLARK  V.   GRAHAM. 
Supreme  Court  of  the  United  States.     1821. 

[Reported  6  Wheaton,  577.] 

Todd,  J.  This  is  an  action  of  ejectment  brought  in  the  Circuit  Court 
for  the  District  of  Ohio.  At  the  trial,  the  plaintiff  proved  a  title  suffi- 
cient in  law,  prima  facie,  to  maintain  the  action.  The  controversy 
turned  altogether  upon  the  title  set  up  bv  the  defendants.  That  title 
was  as  follows :  A  letter  of  attorney,  purporting  to  be  executed  by 
John  Graham,  bearing  date  the  23d  of  September,  1805,  authorizing 
Nathaniel  Massie  to  sell  all  his  estate,  etc.,  in  all  his  lands  in  Ohio. 
This  power  was  executed  in  the  presence  of  two  witnesses  in  Rich- 
mond, in  Virginia,  and  was  there  acknowledged  by  Graham  before  a 
notary  public. 

Nathaniel  Massie,  by  a  deed  dated  the  7th  day  of  June,  1810,  and 
executed  by  him  in  Ohio,  in  his  own  right,  as  well  as  attorney  to  John 
Graham,  convej'ed  to  one  Jacob  Smith,  under  whom  the  defendants 
claimed  the  land  in  controversy.  This  deed  was  executed  in  presence 
of  one  witness  onl}-,  and  was  duly  acknowledged  and  recorded  in  the 
proper  county  in  Ohio.  The  deed  and  letter  of  attorney  so  executed 
and  acknowledged,  were  offered  in  evidence  b^-  the  defendants,  and 
were  rejected  by  the  court,  upon  the  ground  that  they  were  not  suffi- 
cient to  convey  lands  according  to  the  laws  of  Ohio.  The  defendants 
also  offered  in  evidence  a  deed  from  Jacob  Smith  and  wife,  to  the  said 
Graham,  dated  the  7th  of  March,  1811,  duly  witnessed,  acknowledged, 
and  recorded,  conveying  a  certain  tract  of  land  in  Ohio,  and  offered 
further  to  prove,  that  the  tract  of  land  so  conve3'ed  was  given  in  ex- 
change for  and  in  consideration  of  the  lands  conveyed  by  the  deed  first 
mentioned  to  Smith.  This  evidence,  also,  was  rejected  by  the  court. 
A  bill  of  exceptions  was  taken  to  these  proceedings  by  the  defendants ; 
and  the  jury  found  a  verdict  for  the  plaintiff,  upon  which  a  judgment 


340  CLARK   V.    GRAHAM.  [CHAP.  VII. 

was  entered  for  the  plaintiff,  and  the  present  writ  of  error  is  brought 
bj  the  defendants  to  revise  that  judgment. 

The  principal  question  before  this  court  is,  whether  the  deed  so  ex- 
ecuted by  Massie  was  sufficient  to  conve}'  lands  by  the  laws  of  Ohio. 
If  not,  it  was  properly  rejected  ;  if  otherwise,  the  judgment  should  be 
reversed.  Two  objectLons  have  been  taken  to  the  execution  of  this 
deed  ;  first,"that  thepowerofattorney  was  not  duIy'^cKno  w  ieag5ttr«6 
-everyL^eed  is  reqinrecrto"be^in  Ohio  in  orders  jo  conyeyjands_;  and"  if 
~~so,  then  the  sub^a^P"^  conveyance  is  void,^oiMt  is  ageneral  pnnfiipifi^^ 
"TEatXpower  toconvey  lands  must  possess  the  same  requisites,  and  ob- 
serve  the  same  solemnities,  asaxejiecessajiyjjiii-deed  directJy^convey- 
"Tfiglhe  lands.  On  this  objectionTwhich  is  apparently  well  founded,  it 
is  unnecessary  to  dwell,  as  another  objection  is  fatal ;  that  is,  the  deed 
of  Massie  was  executed  in  the  presence  of  one  witness  only,  whereas 
the  law  of  Ohio  requires  all  deeds  for  laud  to  be  executed  in  the  pres- 
ence of  two  witnesses.  It  is  perfectly  clear,  that  no  title  to  lands  can 
hpn£^f]^njred  nr  pn.sspdi  nnless  accordmg  to  tue  laws"  of  the  State~iH~ 
which  they  are  situate.  The  act  of  Ohio  regulating  the  conveyance  of 
lands,  passed  on  the  14th  of  February,  1805,  provides,  "that  all  deeds 
for  the  conveyance  of  lands,  tenements,  and  hereditaments,  situate, 
lying,  and  being  within  this  State,  shall  be  signed  and  sealed  b^-  the 
grantor  in  the  presence  of  two  witnesses,  who  shall  subscribe  the  said 
deed  or  conveyance,  attesting  the  acknowledgment  of  the  signing  and 
sealing  thereof;  and  if  executed  within  this  State,  shall  be  acknowl- 
edged by  the  party  or  parties,  or  proven  by  the  subscribing  witnesses, 
before  a  judge  of  the  Court  of  Common  Pleas,  or  a  justice  of  the  peace 
in  any  county  in  this  State."  Although  there  are  no  negative  words 
in  this  clause,  declaring  all  deeds  for  the  conve3-ance  of  lands  executed 
in  any  other  manner  to  be  void ;  yet  this  must  be  necessarily  inferred 
from  the  clause  in  the  absence  of  all  words  indicating  a  different  legis- 
lative intent,  and  in  point  of  fact  such  is  understood  to  be  the  uniform 
construction  of  the  act  in  the  courts  of  Ohio.  The  deed,  then,  in  this 
case,  not  being  executed  according  to  the  laws  of  the  State,  the  evi- 
dence was  properly  rejected  by  the  Circuit  Court. 

The  remaining  point,  as  to  the  rejection  of  the  evidence  of  the  deed 
from  Smith  to  Graham,  and  the  proof  to  show  that  it  was  given  in  ex- 
change for  the  land  in  controversy,  has  not  been  much  relied  on  in  this 
court.  It  is,  indeed,  too  plain  for  argument,  that  if  a  deed  im[)crfectly 
executed  would  not  convey  any  estate  or  interest  in  the  hind,  a  parol 
exchange,  or  parol  proof  of  an  intention  to  convey  the  same  in  ex- 
change, cannot  be  permitted  to  have  any  such  effect. 

Judgment  affir?ned,  with  costs. 


SECT.   II.l  CAMMELL   V.    SEWELL.  341 


SECTION    II. 


MOVABLES. 


CAMMELL    y.   SEWELL. 

Exchequer  Chamber.     1860. 

[Reported  5  Hurlstone  ^  Norman,  728] 

Trover  for  deals,  with  a  count  for  money  had  and  received.  At  the 
trial  a  verdict  was  taken  for  the  plaintiffs,  subject  to  a  special  case, 
which  was  substantially  as  follows.  The  plaintiffs  were  underwriters 
at  Hull ;  the  defendants  merchants  in  London.  The  action  was  brought 
to  recover  part  of  a  cargo  of  deals  shipped  on  board  the  Prussian  ship 
"Augusta  Bertha"  at  Onega,  in  Russia,  by  the  Onega  Wood  Com- 
panj-,  for  Messrs.  Simpson  &  Whaplate,  of  Hull,  and  b}-  them  insured 
with  the  plaintiffs.  The  plaintiffs  had  paid  Messrs.  Simpson  &  Wha- 
plate as  for  a  total  loss. 

The  "  Augusta  Bertha  "  having  put  into  Haroe  Roads,  in  Norway,  in 
consequence  of  the  shifting  of  her  deck  cargo,  drove  from  her  anchor- 
age on  the  rocks  at  Smaage,  about  tLz-ee  miles  from  Molde.  The  cargo 
was  discharged  and  the  vessel  abandoned,  and  the  master  sold  the 
cargo  by  auction  (against  the  protest  of  the  representative  of  the  con- 
signees) to  one  Hans  Clausen,  who  consigned  them  to  the  defendants. 
The  cargo  was  sold  by  the  defendants  for  an  amount  greater  than  the 
insurance  money  paid  by  the  plaintiffs. 

By  the  law  of  Norway,  the  sale  by  auction  passed  a  good  title  to  the 
purchaser,  even  if  the  master,  as  between  himself  and  the  owners,  was 
acting  wrongfully.  The  representative  of  the  consignees  instituted  a 
suit  in  the  Superior  Diocesan  Court  of  Trondjhem  to  set  aside  the  sale  ; 
but  the  court  confirmed  the  sale. 

The  Court  of  Exchequer  ordered  the  verdict  for  the  plaintiffs  to  be 


342  CAMMELL    V.    SEWELL.  [CHAP.  VII. 

set  aside,  and  a  verdict  entered  for  the  defendant ;  and  the  plaintiffs 
brought  the  case  into  the  Exchequer  Chamber  on  a  writ  of  error.^ 

Crompton,  J.  In  this  case  the  majority  of  the  court  (Cockburn, 
C.  J.,  WiGHTMAK,  Williams,  Crompton,  and  Keating,  JJ.)  are  of 
opinion  that  the  judgment  of  the  Court  of  Exchequer  should  be 
affirmed.  At  the  same  time  we  are  by  no  means  prepared  to  agree 
with  the  Court  of  Exchequer  in  thinking  the  judgment  of  the  Diocesan 
Court  in  Norway  conclusive  as  a  judgment  in  rem,  nor  are  we  satisfied 
that  the  defendants  in  the  present  action  were  estopped  by  the  judg- 
ment of  tliat  court,  or  what  was  relied  on  as  a  judicial  proceeding  at 
the  auction.  It  is  not,  however,  necessary  for  us  to  express  any  de- 
cided opinion  on  these  questions,  as  we  think  that  the  case  should  be 
determined  on  the  real  merits  as  to  the  passing  of  the  property. 

If  we  are  to  recognize  the  Norwegian  law,  and  if  according  to  that 
law  the  property  passed  by  the  sale  in  Norway  to  Clausen  as  an  inno- 
cent purchaser,  we  do  not  think  that  the  subsequent  bringing  the  prop- 
erty to  England  can  alter  the  position  of  the  parties.  The  difficulty 
which  we  have  felt  in  the  case  principally  arises  from  the  mode  in  which 
the  evidence  is  laid  before  us  in  the  mass  of  papers  and  depositions 
contained  in  the  appendix. 

We  do  not  see  evidence  in  the  case  sufficient  to  enable  us  to  treat 
the  transaction  as  fraudulent  on  the  part  of  Clausen,  although  there  are 
circumstances  which  would  have  made  it  better  for  him  not  to  have 
become  the  purchaser.  Treating  him,  therefore,  as  an  innocent  pur- 
chaser, it  appears  to  us  that  the  questions  ai-e,  did  the  property  by  the 
law  of  Norway  vest  in  him  as  an  innocent  purchaser?  and  are  we  to 
recognize  that  law?  The  question  of  what  is  the  foreign  law  is  one  of 
fact,  and  here  again  there  is  great  difficulty  in  finding  out  from  the 
mass  of  documents  what  is  the  exact  state  of  the  law.  The  conclusion 
which  we  draw  from  the  evidence  is,  that  by  tlie  law  of  Norway  the 
captain,  under  circumstances  such  as  existed  in  this  case,  could  not,  as 
between  himself  and  liis  owners,  or  the  owners  of  the  cargo,  justify  the 
sale,  but  that  he  remained  liable  and  responsible  to  them  for  a  sale  not 
justified  under  the  circumstances  ;  whilst,  on  the  other  hand,  an  inno- 
cent purchaser  would  have  a  good  title  to  the  property  bought  by  him 
from  the  agent  of  the  owners. 

It  does  not  appear  to  us  that  there  is  anything  so  barbarous  or  mon- 
strous in  this  state  of  the  law  as  that  we  can  say  that  it  should  not  be 
recognized  by  us.  Our  own  law  as  to  market  overt  is  analogous  ;  and 
though  it  is  said  that  much  mischief  would  be  done  by  upholding  sales 
of  this  nature,  not  justified  by  the  necessities  of  the  case,  it  may  well 

1  This  short  statement  of  facts  is  substituted  for  that  of  the  TJeporters  in  3  H.  &  N- 
617.  Arguments  of  counsel  are  omitted.  In  the  coarse  of  tlie  argument,  Cockburn, 
C.  J.,  said :  "  If  a  person  sends  goods  to  a  foreign  country  it  may  well  be  that  he  is 
bound  by  the  law  of  that  country ;  hut  here  the  goods  were  wrecked  on  the  coast  of 
Norway,  and  came  there  without  the  owner's  assent.  Could  the  arrival  of  the  goods 
there  enlarge  the  captain's  authority  1"  —  Ed. 


SECT.  II.]  CAMMELL    V.    SEWELL.  343 

be  that  the  mischief  would  be  greater  if  the  vendee  were  only  to  have  a 
title  in  eases  where  the  master  was  strictly  justified  in  selling  as  be- 
tween himself  and  the  owners.  If  that  were  so,  purchasers,  who  sel- 
dom can  know  the  facts  of  the  case,  would  not  be  inclined  to  give  the 
value,  and  on  proper  and  lawful  sales  by  the  master  the  property  would 
be  in  great  danger  of  being  sacrificed. 

There  appears  nothing  barbarous  in  saying  that  the  agent  of  the 
owners,  who  is  the  person  to  sell,  if  the  circumstances  justify  the  sale, 
and  who  must,  in  point  of  fact,  be  the  part}'  to  exercise  his  judgment 
as  to  whether  there  should  be  a  sale  or  not,  should  have  the  power  of 
giving  a  good  title  to  the  innocent  purchaser,  and  that  the  latter  should 
not  be  bound  to  look  to  the  title  of  the  seller.  It  appears  in  the  pres- 
ent case  that  the  one  purchaser  bought  the  whole  cargo ;  but  suppose 
the  farmers  and  persons  in  the  neighborhood  at  such  a  sale  bu}-  several 
portions  of  the  goods,  it  would  seem  extremely  inconvenient  if  they 
were  liable  to  actions  at  the  suit  of  the  owners,  on  the  ground  that 
there  was  no  necessity  for  the  sale.  Could  such  a  purchaser  coming 
to  England  be  sued  in  our  courts  for  a  conversion,  and  can  it  alter  the 
case  if  he  resell,  and  the  property  comes  to  this  country? 

Many  cases  were  mentioned  in  the  course  of  the  argument,  and  more 
might  be  collected,  in  which  it  might  seem  hard  that  the  goods  of  for- 
eigners should  be  dealt  with  according  to  the  laws  of  our  own  or  of 
other  countries.  Amongst  others  our  law  as  to  the  seizure  of  a  foreign- 
er's goods  for  rent  due  from  a  tenant,  or  as  to  the  title  gained  in  them, 
if  stolen,  by  a  sale  in  market  overt,  might  appear  harsh.  But  we  can- 
not think  that  the  goods  of  foreigners  would  be  protected  against  such 
laws,  or  that  if  the  property  once  passed  hj  virtue  of  them,  it  would 
again  be  changed  by  being  taken  by  the  new  owner  into  the  foreigner's 
own  countr}'.  We  think  that  the  law  on  this  subject  was  correctly 
stated  b}-  the  Lord  Chief  Baron  in  the  course  of  the  argument  in  the 
court  below,  where  he  says  '"'  if  personal  property  is  disposed  of  in  a 
manner  binding  according  to  the  law  of  the  countr}'  where  it  is,  that 
disposition  is  binding  everywhere."  And  we  do  not  think  that  it  makes 
any  difference  that  the  goods  were  wrecked,  and  not  intended  to  be  sent 
to  the  countr}'  where  they  were  sold.  We  do  not  think  that  the  goods 
which  were  wrecked  here  would  on  that  account  be  the  less  liable  to 
our  laws  as  to  market  overt,  or  as  to  the  landlord's  right  of  distress, 
because  the  owner  did  not  foresee  that  they  would  come  to  England. 

Very  little  authority  on  the  direct  question  before  us  has  been  brought 
to  our  notice.  The  only  case  which  seems  at  variance  with  the  prin- 
ciples we  have  enunciated  is  the  case  of  the  "Eliza  Cornish"  or 
"  Segredo,"  before  the  judge  of  the  Court  of  Admiralty.  1  Eccl.  & 
Adm.  36.  If  this  case  be  an  authority  for  the  proposition  that  a  law  of 
a  foreign  country  of  the  nature  of  the  law  of  Norway,  as  proved  in  the 
present  case,  is  not  to  be  regarded  by  the  courts  of  this  country,  and 
that  its  effect  as  to  passing  property  in  the  foreign  country  is  to  be  dis- 
regarded, we  cannot  agree  with  the  decision  ;  and,  with  all  the  respect 


?,44  CAMMELL    V.    SEWELL.  [CHAP.  VII. 

cue  to  so  high  an  authority  in  mercantile  transactions,  we  do  not  I'eel 
ourselves  bound  by  it  when  sitting  in  a  court  of  error.  We  must  re- 
mark, also,  that  in  the  case  of  Freeman  v.  The  East  India  Company, 
5  B.  &  Aid.  617,  the  Court  of  Queen's  Bench  appear  to  have  assented 
to  the  proposition  that  the  Dutch  law,  as  to  market  overt,  might  have 
had  the  effect  of  passing  the  property  in  such  case  if  the  circumstances 
of  the  knowledge  of  the  transaction  had  not  taken  the  case  out  of  the 
provisions  of  such  law. 

In  the  present  case,  which  is  not  like  the  case  of  Freeman  v.  The 
East  India  Company,  the  case  of  an  English  subject  purchasing  in  an 
English  colony  property  which  he  was  taken  to  know  that  the  vendor 
had  no  authority  to  sell,  we  do  not  think  that  we  can  assume  on  the 
evidence  that  the  purchase  was  made  with  the  knowledge  that  the  sell- 
ers had  no  authority,  or  under  such  circumstances  as  to  bring  the  case 
within  anj'  exception  to  the  foreign  law,  which  seems  to  treat  the  mas- 
ter as  having  sufficient  authority  to  sell,  so  as  to  protect  the  innocent 
purchaser  where  there  is  no  representative  of  tlie  real  owner.  It  should 
be  remarked,  also,  that  Lord  Stowell,  in  the  passage,  cited  in  the  case 
of  Freeman  v.  The  East  India  Company,  from  his  judgment  in  the  case 
of  the  "  Gratitudine,"  states  that  if  the  master  acts  unwisely  in  his  de- 
cision as  to  selling,  still  the  foreign  purchaser  will  be  safe  under  his 
acts.  The  doctrine  of  Lord  Stowell  agrees  much  more  with  the  prin- 
ciples on  which  our  judgment  proceeds  than  with  those  reported  to 
have  been  approved  of  in  the  case  of  the  "  Eliza  Cornish,"  as,  on  the 
evidence  before  us,  we  cannot  treat  Clausen  otherwise  than  as  an  inno- 
cent purchaser,  and,  as  the  law  of  Norway  appears  to  us,  on  the  evi- 
dence, to  give  a  title  to  an  innocent  purchaser,  we  think  that  the 
property  vested  in  him,  and  in  the  defendants  as  sub-purchasers  from 
him,  and  that,  having  once  so  vested,  it  did  not  become  divested  by 
its  being  subsequently  brought  to  this  countr}',  and,  therefore,  that  the 
judgment  of  the  Court  of  Exchequer  should  be  affirmed. 

CocKBURN,  C.  J.  Concurring  in  the  judgment  delivered  by  my  brother 
Cromiton,  it  further  appears  to  me  that  the  case  may  also  be  put  upon 
another  and  a  shorter  ground. 

Although  the  goods  in  question  were  at  one  time  the  property  of 
English  owners,  the  property  in  them  was  transferred  to  others  by  a 
sale  valid  according  to  the  law  of  Norwa}-,  a  country  in  which  the  goods 
were  at  the  time  of  such  sale. 

Even  if  it  were  admitted,  for  the  purpose  of  argument,  that  by  the 
law  of  the  country  to  which  the  ship  belonged  the  master  would  not 
have  had  the  power  to  dispose  of  the  ship  or  cargo  in  case  of  wreck, 
which  the  law  of  Norway  gives  in  such  a  case,  and  that  the  law  of 
Norway  would  be  overridden  by  the  law  of  the  nation  to  which  the 
ship  belonged,  then  it  is  to  be  observed  that,  the  ship  having  been  a 
Prussian  ship,  and  the  carriers,  the  shipowners,  Prussians,  and  the 
goods  having  been  shipped  in  Russia,  the  power  of  the  maslor  must 
depend  on  the  law  either  of  the  country  to  which  the  ship  belonged,  or 


SECT,  n.]  LANGWORTHY   V.   LITTLE,  345 

of  the  place  where  the  contract  to  carry  was  entered  into.  The  law  of 
England,  never  having  attached  to  the  goods,  as  they  never  were  on 
board  an  English  vessel  or  reached  British  territorj,  cannot  apply  to 
the  case.  The  law  of  nations  cannot  determine  the  question  for  the 
international  law  is  by  no  means  uniform  as  to  the  powers  of  a  master 
as  abundantly  appeared  from  the  various  codes  which  were  brouo-ht 
to  our  notice  during  the  argument.  But  no  evidence  was  adduced  to 
show  what  was  the  law  of  Prussia  or  that  of  Russia  in  the  matter  in 
question. 

The  case  therefore  stands  nakedly  thus,  —  a  good  contract  of  sale  to 
transfer  the  property  in  Norway,  without  anything  to  show  that  by  the 
general  law  of  nations,  or  by  the  law  of  any  nation  which  can  possibly 
apply  to  the  present  case,  the  sale  valid  in  Norway  can  be  invalidated 
elsewhere. 

Byles,  J.,  dissented.  Judgment  affirmed.^ 


LANGWORTHY   v.    LITTLE. 

Supreme  Judicial  Couut  of  Massachusetts.     1853. 

[Reported  12  Cashing,  109.] 

This  was  an  action  of  tort  for  a  horse  and  buggy  wagon,  attached 
by  the  defendant,  a  deputy-sheriff,  as  the  property  of  one  Charles  E. 
McCart}',  September  11,  1849.  The  plaintiff,  an  inhabitant  of  Hills- 
dale, in  the  State  of  New  York,  claimed  title  under  a  prior  mortgage 
from  said  McCarty,  made  and  dated  at  said  Hillsdale,  September  1, 
1849,  at  which  time  the  property  was  at  Hillsdale,  and  in  the  posses- 
sion of  said  IMcCarty.  The  mortgage  was  duly  filed  in  the  town-clerk's 
office  of  Hillsdale,  according  to  the  laws  of  New  Y^'ork,  which  were  pro- 
duced and  read  at  the  trial  in  the  Court  of  Common  Pleas.  Rev.  Sts. 
of  New  York,  vol.  2,  p.  71.  The  plaintiff  also  proved  a  due  demand 
on  the  defendant  for  the  pa3'ment  of  the  amount  due  him  on  said  mort- 
gage, pursuant  to  Rev.  Sts.  c.  90,  §  79,  and  that  payment  was  refused. 
The  defendant  offered  to  prove  that  said  McCart\-,  the  mortgagor,  at 

1  The  general  rule  that  the  passing  of  title  to  a  chattel  is  determined  by  the  law  of 
the  situs,  not  by  that  of  the  place  of  making  the  contract  of  transfer,  nor  by  that  of  the 
domicil  of  the  owner,  is  well  established.  Mackey  v.  Pettyjohn,  6  Kan.  App.  57,  49  Pac. 
636  ;  Ames  v.  McCamber,  124  Mass.  85.  (See,  however,  N.  W.  Bank  v.  Poynter  [1895], 
A.  C.  56;  Fouke  v.  Fleming,  13  Md.  392.)  Thus  the  requirements  as  to  registration 
depend  upon  the  law  of  the  situs.  Coote  v.  Jecks,  L.  R.  13  Eq.  597 ;  Gosline  v.  Dun- 
bar, 32  N.  B.  325.  If  the  title  has  passed  by  the  law  of  the  situs,  the  new  title  is 
recognized  in  any  State  into  which  the  goods  may  be  brought ;  and  this  although  by 
the  law  of  the  latter  State  the  title  would  not  have  passed.  This  rule  obtains  whether 
the  title  passed  by  consent  of  the  parties,  Rabun  v.  Rabun,  15  La.  Ann.  471  ;  Sleeper 
V.  Pa.  R.  R.,  100  Pa.  259 ;  or  by  operatiou  of  law,  as,  for  instance,  by  the  statute  of 
limitations.  Shelby  v.  Guy,  11  Wheat.  361  ;  Brown  v.  Brown,  5  Ala.  508;  Waters  v. 
Barton,  1  Cold.  450.  —  Er>. 


346  LANGWORTHY    V.    LITTLE.  [CHAP.  VIL 

the  time  of  making  the  mortgage,  resided  in  the  town  of  Mount  Wash- 
ington, in  this  county,  and  after  the  mortgage  was  made,  imracdiatcl}' 
returned  with  it  to  this  State,  and  the  same  remained  here  in  his  pos- 
session, until  it  was  attached  by  the  defendant,  on  a  writ  in  favor  of 
citizens  of  Connecticut,  who  had  no  knowledge  of  the  mortgage  ;  nor 
was  the  same  recorded  in  the  town  of  Mount  Washington.  Mellcn,  J., 
ruled  that  these  facts  constituted  no  defence  to  the  action,  and  tlie  ver- 
dict being  for  the  plaintiff,  the  defendant  excepted  to  such  ruling. 
The  other  facts  of  the  case  are  stated  in  the  opinion.^ 

Shaw,  C.  J.  Tins  mort^age_of  i^ersoiLaU^roperty,  was  made  in_Ney 
York,  the  property  then  being  there,  to  a  citizen  of  New  Yoi'k,  XXvovo^ 
residing,  recorded  in  the  town-clerk's  ollice  in  the  town  of  Hillsdale,  , 
New  York,  and  sq  made  as  to  be  valid,  and  bind  the  prop_erty_in  that.. 
§tate."~Being  removed  into  Massachusetts,  it  was  here  attached  by  the 
'Hefe'ndant,  as  the  property  of  the  mortgagor.  The  property  in  question 
was  a  horse  and  buggy  wagon,  and  it  appeared  that  the  horse  and 
wagon  were  sold  by  the  plaintiff  at  Hillsdale,  to  McCarty,  the  mort- 
o-a<^or,  and  mortgaged  back  at  the  same  time,  to  secure  McCarty's  note 
given  at  the  same  time,  in  part  payment  for  said  i)urchase.  The  plain- 
tiff, by  this  conveyance,  acquired  a  good  qualified  title  to  the  property, 
by  the  laws  of  the  State  of  New  York,  a  property  sufficient  to  enable 
him  to  maintain  trover  against  a  wrongdoer;  and  an  officer  attaching 
the  property  as  the  property  of  the  mortgagor,  especially  without  pay- 
ing, and  in  fact  refusing  to  pay  the  debt  of  the  mortgagee,  when  noti- 
fied to  him  and  demanded  of  him,  is  as  to  him  a  wrongdoer.  A  party 
who  obtains.^ good  title  to  property,  absolute  or  qualified,  bv^the  Tirtr& 
^f  a_siste¥-^t^&r-is^eiltMedTo  maintain  and  enforce  those  rights  in  this 
Jtaie.^  It  is  a_case  whieiie  thelea;  loci  contractus  must  gojern. 
''  We  think  there  is  no  ground  for  the  argument,  that  by  th^e^t.  l.S-t3, 
c.  72,  this  mortgage  should  have  been  recorded  by  the  clerk  of  the 
town  where  the  mortgagor  resides,  and  also  of  the  town  where  he  prin- 
cipally transacts  his  business,  or  follows  his  calling,  and  that  said  stat- 
ute obviously  applies  only  to  mortgages  made  in  Massachusetts. 

Exceptions  overrnled.^ 

1  Argtiments  of  counsel  are  omitted.  —  En. 

2  Ace.  U.  S.  Bank  v.  Lee,  13  Pet.  107 ;  Alfcritz  v.  Ingalls,  83  Fed.  964 ;  Beall  v. 
Williamson,  14  Ala.  55;  Hall  v.  Pillow,  31  Ark.  32  ;  Ballard  v.  Winter,  39  Conn.  179; 
Peterson  v.  Kaigler,  78  Ga.  464,  3  S.  E.  655  ;  Muniford  v.  Canty,  .50  111.  370 ;  Smith 
p.  McLean,  24  la.  322;  llandley  r.  Harris,  48  Kan.  606,  29  Pac.  1145;  Keenan  v. 
Stimson,  32  Minn.  377,  20  N.  W.  364 ;  Barker  v.  Stacy,  25  Miss.  471  ;  Smith  v.  Hutch- 
ings,  30  Mo.  380;  Offutt  v.  Flagg,  10  N.  H.  46;  Hornthal  v.  Burwell.  109  N.  C. 
10,  13  S.  E.  721  ;  Wilson  v.  Rustad,  7  N.  D.  330,  75  N.  W.  260  ;  Kanaga  v.  Taylor, 
7  Ohio  S.  134;  Greenville  Nat.  Bank  i-.  Evans-Snydor-Buel  Co.,  9  ( )kla.  353  ;  Cren- 
shaw i;.  Anthony,  Mart.  &  Y.  102  ;  Craig  v.  Williams,  90  Va.  500,  185  E.  899;  Mc- 
Gregor V.  Kerr,  29  N.  S.  45. 

Contra,  Wilson  i;.  Carson,  12  Md.  54;  Corhett  v.  Littlefield,  84  Mich.  30  (see 
Vining  v.  Millar,  109  Mich.  205,  67  N.  W.  126)  ;  Armitagc  v.  Spahn,  4  Pa.  Dist.  Ct. 
270.     And  sec  Jones  f.  Taylor,  30  Vt.  42. 


SECT.  II.  ■!  MAK\aN   SAFE    CO.    V.   NOhTON,  347 


MARVIN   SAFE   COMPANY  v.   NORTON. 

Supreme  Court  of  New  Jersey.     1886. 

[Reported  48  New  Jersey  Law,  410.] 

On  May  1,  1884,  one  Samuel  N.  Schwartz,  of  Hightstown,  Mercer 
county.  New  Jersey,  went  to  Philadelphia,  Pennsylvania,  and  there,  in 
the  office  of  the  prosecutors,  executed  the  following  instrument :  — 

"  May  1st,  1884. 
'"'•  Marvin  Safe  Company: 

"  Please  send,  as  per  mark  given  below,  one  second-hand  safe,  for 
which  the  undersigned  agrees  to  pay  the  sum  of  eighty-four  dollars 
($84),  seven  dollars  cash,  and  balance  seven  dollars  per  month. 
Terms  cash,  delivered  on  board  at  Philadelphia  or  New  York,  unless 
otherwise  stated  in  writing.  It  is  agreed  that  Marvin  Safe  Company 
shall  not  relinquish  its  title  to  said  safe,  but  shall  remain  the  sole 
owners  thereof  until  above  sum  is  fully  paid  in  mone}'.  In  event  of 
failure  to  pay  any  of  said  instalments  or  notes,  when  same  shall  become 
due,  then  all  of  said  instalments  or  notes  remaining  unpaid  shall  immo- 
diatel}'  become  due.  The  Marvin  Safe  Company  may,  at  their  option, 
remove  said  safe  without  legal  process.  It  is  expressly  understood 
that  there  are  no  conditions  whatever  not  stated  in  this  memorandum, 
and  the  undersigned  agrees  to  accept  and  pay  for  safe  in  accordance 
therewith.  Samuel  N.  Schwartz. 

"  Mark  —  Samuel  N.  Schwartz,  Hightstown,  New  Jersey. 

"  Route  —  New  Jersey. 

''Not  accountable  for  damages  after  shipment." 

Schwartz  paid  the  first  instalment  of  %1  Ma}-  1,  1884,  and  the  safe 
was  shipped  to  him  the  same  da}'.  He  afterwards  paid  two  instalments, 
of  S7  each,  by  remittance  to  Philadelphia  by  check.  Nothing  more 
was  paid. 

On  July  30,  1884,  Schwartz  sold  and  delivered  the  safe  to  Norton 
for  $55.  Norton  paid  him  the  purchase-mone}-.  He  bought  and  paid 
for  the  safe  without  notice  of  Schwartz's  agreement  with  the  prosecu- 
tors. Norton  took  possession  of  the  safe  and  removed  it  to  his  office. 
Schwartz  fs  insolvent  and  has  absconded. 

The  prosecutor  brought  trover  against  Norton,  and  in  the  court  be- 
low the  defendant  recovered  judgment,  on  the  ground  that  the  defendant, 
having  bought  and  paid  for  the  safe  bona  fide,  the  title  to  the  safe,  by 
the  law  of  Pennsylvania,  was  transferred  to  him. 


348  MARVIN    SAFE    CO.   V.   NORTON.  [CHAP.  VIL 

Depue,  J.  \The  contract  expressed  in  the  written  order  of  May  1, 
1884,  signed  by  Schwartz,  is  for  the  sale  of  the  property  to  him  condi- 
tionally, the  vendor  reserving  the  title,  notwithstanding  delivery,  until 
the  contract  price  should  be  paidA  The  courts  of  Pennsylvania  make  a 
distinction  between  the  bailment  of  a  chattel,  with  power  in  the  bailee 
to  become  the  owner  on  payment  of  the  price  agreed  upon,  and  tlie 
sale  of  a  chattel  with  a  stipulation  that  the  title  shall  not  pass  to  the 
purchaser  until  the  contract  price  shall  be  paid.  On  this  distinction 
the  courts  of  that  State  hold  that  a  bailment  of  chattels,  with  an  option 
in  the  bailee  to  become  the  owner  on  payment  of  the  price  agreed  upon, 
is  valid,  and  that  the  right  of  the  bailor  to  resume  possession  on  non- 
payment of  the  contract  price  is  secure  against  creditors  of  the  bailee 
and  bona  fide  purchasers  from  him  ^  but  that  upon  the  delivery  of  per- 
sonal property  to  a  purchaser  under  a  contract  of  sale,  the  reservation 
of  title  in  the  vendor  until  the  contract  price  is  paid  is  void  as  against 
creditors  of  the  purchaser  or  a  bona  fide  purchaser  from  him.>  Clow  v. 
^Yoods,  5  S.  &  R.  275  ;  Enlow  v.  Klein,  79  Penn.  St.  488  ;  Haak  v. 
Linderman,  64  Penn.  St.  499  ;  Stadfeld  v.  Huntsman,  92  Penn.  St.  53  ; 
Brunswick  r.  Hoover,  95  Penn.  St.  508;  1  Benj.  on  Sales  (Corbin's  ed.), 
§  446  ;  30  Am.  Law  Reg.  224,  note  to  Lewis  v.  McCabe. 

In  the  most  recent  case  in  the  Supreme  Court  of  Pennsylvania  Mr. 
Justice  Sterrett  said  :  "  A  present  sale  and  delivery  of  personal  prop- 
erty to  the  vendee,  coupled  with  an  agreement  that  the  title  shall  not 
vest  in  the  latter  unless  he  pays  the  price  agreed  upon  at  the  time  ap- 
pointed therefor,  and  that  in  default  of  such  payment  the  vendor  may 
recover  possession  of  the  property,  is  quite  different  in  its  effect  from 
a  bailment  for  use,  or,  as  it  is  sometimes  called,  a  lease  of  the  property, 
coupled  with  an  agreement  whereby  the  lessee  may  subsequently  be- 
come owner  of  the  property  upon  payment  of  a  price  agreed  upon. 
As  between  the  parties  to  such  contracts,  both  are  valid  and  binding ; 
but  as  to  creditors,  the  latter  is  good  while  the  former  is  invalid." 
Forest  v.  Nelson,  19  Rep.  38  ;  108  Penn.  St.  481. 

The  cases  cited  show  that  the  Pennsylvania  courts  hold  the  same 
doctrine  with  respect  to  bona  fide  purchasers  as  to  creditors. 

In  this  State,  and  in  nearly  all  of  our  sister  States,  conditional  sales  — 
that  is,  sales  of  personal  property  on  credit,  with  delivery  of  possession 
to  the  purchaser  and  a  stipulation  that  the  title  shall  remain  in  the 
vendor  until  the  contract  price  is  paid  —  liave  been  held  valid,  not  only 
against  the  immediate  purchaser,  but  also  against  his  creditors  and 
bona  fide  purchasers  from  him,  unless  the  vendor  has  conferred  upon 
his  vendee  indicia  of  title  beyond  mere  possession,  or  has  forfeited  his 
right  in  the  proi^erty  by  conduct  which  the  law  regards  as  fraudulent. 
The  cases  are  cited  in  Cole  v.  Berry,  13  Vrooin,  308  ;  Midland  R.  R. 
Co.  V.  Hitchcock,  10  Stew.  Eq.  549,  559  ;  1  Benj.  on  Sales  (Corbin's 
ed.),  §§  437-460;  1  Smith's  Lead.  Cas.  (8th  ed.)  33-90;  30  Am.  Law 
Reg.  224,  note  to  Lewis  v.  McCabe  ;  15  Am.  Law  Rev.  380,  tit.  "  Con- 
version by  Purchase."     The  doctrine  of  the  courts  of  Pennsylvania  is 


SECT.  II.] 


MARVIN    SAFE    CO.    V.    NORTON. 


349 


founded  upon  the  doctrine  of  Twyne's  Case,  3  Rep.  80,  and  Edwards 
V.  Harbin,  2  T.  R.  587,  that  the  possession  of  chattels  under  a  contract 
of  sale  without  title  is  an  indelible  badge  of  fraud  —  a  doctrine  repu- 
diated quite  generally  by  the  courts  of  this  country,  and  especially  in 
this  State.  Runyon  v.  Groshon,  1  Beas.  865  Broadwa}'  Bank  v. 
McP^lrath,  2  Beas.  24  ;  Miller  ads.  Pancoast,  5  Dutch.  250.  The  doc- 
trine of  the  Pennsylvania  courts  is  disapproved  by  the  American 
editors  of  Smith's  Leading  Cases  in  the  note  to  Twyne's  Case,  1  Sm. 
Lead  Cas.  (8th  ed.)  33,  34,  and  by  Mr.  Landreth  in  his  note  to  Lewis 
v.  McCabe,  30  Am.  Law  Reg.  224;  but  nevertheless  the  Supreme 
Court  of  that  State,  in  the  latest  case  on  the  subject  —  Forest  v.  Nel- 
son, decided  February  16,  1885  —  has  adhered  to  the  doctrine.  It  must 
therefore  be  regarded  as  the  law  of  Pennsylvania  that  upon  a  sale  of 
personal  property  with  delivery  of  possession  to  the  purchaser,  an 
agreement  that  title  should  not  pass  until  the  contract  price  should  be 
paid  is  valid  as  between  the  original  parties,  but  that  creditors  of  the 
purchaser,  or  a  purchaser  from  him  bonajide,  by  a  lev}'  under  execu- 
tion or  a  bonajide  purchase,  will  acquire  a  better  title  than  the  original 
purchaser  had — a  title  superior  to  that  reserved  by  his  vendor.  So 
far  as  the  law  of  Pennsylvania  is  applicable  to  the  transaction  it  must 
determine  tbe  rights  of  these  parties. 


me  contract  of  sale  between  the  Marvin  Safe  Company  and  Schwartz 
was  made  at  the  company's  office  in  Philadelphia.  The  contract  con- 
templated performance  by  the  delivery  of  the  safe  in  Philadelphia  to 
the  carrier  for  transportation  to  Hightstown,  When  the  terms  of  sale 
are  agreed  upon,  and  the  vendor  has  done  everj'thing  that  he  has  to 
do  with  the  goods,  the  contract  of  sale  becomes  absolute.  Leonard  v. 
Davis,  1  Black,  476  ;  1  Benj.  on  Sales,  §  308.  Delivery  of  the  safe  to 
the  carrier  in  pursuance  of  the  contract  was  deliver}-  to  Schwartz,  and 
was  the  execution  of  the  contract  of  sale.  His  title,  such  as  it  was, 
under  the  terms  of  the  contract  was  thereupon  complete. 

The  validity,  construction,  and  legal  effect  of  a  contract  ma}'  depend 
either  upon  the  law  of  the  place  where  it  is  made  or  of  the  place  where 
it  is  to  be  performed,  or,  if  it  relate  to  movable  property,  upon  the  law 
"of  the  situs  of  the  property,  according  to  circumstances  ;  but  when  the 
place  where  the  contract  is  made  is  also  the  place  of  performance  an^ 
of  the  situs  of  the  property,  the  law  of  that  place  enters  into  and  be-^ 
comes  part  of  the  contr.act^  and  dpfermines  the  rights  of__thp  pfirties  tQ> 
it.  Fredericks  v.  Frazier,  4  Zab.  162  ;  Dacosta  v.  Daviss  4  Zab.  319  ; 
Bulkley  v.  Honold,  19  How.  390  ;  Scudder  v.  Union  National  Bank,  91 
U.  S.  406;  Pritchard  v.  Norton,  106  U.  S.  124;  Morgan  v.  N.  O., 
M.  &T.  R.  R.  Co.,  2  Woods.  244  ;  Simpson  v.  Fogo,  9  Jur.  (n.  s.) 
403  ;  Whart.  Confl.  of  Law,  §§  341,  345,  401,  403,  418  ;  Parr  u.  Brady, 
8  Vroom,  201.  The  contract  between  Schwartz  and  the  company  hav- 
ing been  made,  and  also  executed  in  Pennsylvania  by  the  delivery  of 
the  safe  to  him,  as  between  him  and  the  company  Schwartz's  title  will 
be  determined  by  the  law  of  Pennsylvania.     By  the  law  of  that  State 


4i> 


cX 


350  -  MAEVIN    SAFE    CO.    V.   NORTON.  [CHAP.  VII. 

the  condition  expressed  in  the  contract  of  sale  that  the  safe  company 
should  not  relinquish  title  until  the  contract  price  was  paid,  and  that 
on  the  failure  to  pa}'  any  of  the  instalments  of  the  price  the  company 
might  resume  possession  of  the  property,  was  valid  as  between  Schwartz 
and  the  compan}'.  B\'  his  contract  Schwartz  obtained  possession  of  the 
safe  and  a  right  to  acquire  title  on  pa3-ment  of  the  contract  price  ;  but 
until  that  condition  was  performed  the  title  was  in  the  company.  In 
this  situation  of  affairs  the  safe  was  brought  into  this  State,  and  the 
property  became  subject  to  our  laws. 

The  contract  of  Norton,  the  defendant,  with  Schwartz  for  the  pur- 
chase of  the  safe  was  made  at  Hightstown  in  this  State.  The  property 
was  then  in  this  State,  and  the  contract  of  purchase  was  executed  by 
delivery  of  possession  in  this  State.  The  contract  of  purchase,  the 
domicil  of  the  parties  to  it,  and  the  situs  of  the  subject-matter  of  pur- 
chase were  all  within  this  State.  In  every  respect  the  transaction  be- 
tween  Norton  and  Schwartz  was  a  New  Jersey'  transaction.  Under 
these  circumstances,  by  principles  of  law  which  are  indisputable,  the 
construction  and  legal  effect  of  the  contract  of  purchase,  and  the  rights 
of  the  purchaser  under  it,  are  determined  by  the  law  of  this  State.  By 
thejaw  of  this  State  Norton,  by  his  purchase^  acquired  only  the  title  nf 

Jiis  vendor,  —  only  such  title  as^he  vendor  had  when  the_property  was 
brought  into  this  State  and  became_su.b.tect  to  our  laws. 

■  rt  is  insisted  that  inasmuch  as  Norton's  purchase,  if  made  in  Penn- 
sj'lvania,  would  have  given  hira  a  title  superior  to  that  of  the  safe 
company,  that  therefore  his  purchase  here  should  have  that  effect,  on 
the  theory  that  the  law  of  Penns3'lvania,  which  subjected  the  title  of 
the  safe  company  to  the  rights  of  a  bona  fide  purchaser  from  Schwartz, 
was  part  of  the  contract  between  the  company  and  Schwartz.  There 
is  no  provision  in  the  contract  between  the  safe  company  and  Schwartz 
that  he  should  have  power,  under  any  circumstances,  to  sell  and  make 
title  to  a  purchaser.  Schwartz's  disposition  of  the  property  was  not  in 
conformity  with  his  contract,  but  in  violation  of  it.  His  contract,  as 
construed  by  the  laws  of  Pennsylvania,  gave  him  no  title  which  he 
could  lawfully  convey.  To  maintain  title  against  the  safe  company 
Norton  must  build  up  in  himself  a  better  title  than  Schwartz  had.  He 
can  accomplish  that  result  only  b}'  virtue  of  the  law  of  the  jurisdiction 
in  which  he  acquired  his  rights. 

The  doctrine  of  the  Pennsylvania  courts  that  a  reservation  of  title  in 
the  vendor  upon  a  conditional  sale  is  void  as  against  creditors  and  bona 
fide  purchasers,  is  not  a  rule  affixing  a  certain  construction  and  legal 
effect  to  a  contract  made  in  that  State.  The  legal  effect  of  such  a  con- 
tract is  conceded  to  be  to  leave  propert}'  in  the  vendor.  The  law  acts 
upon  the  fact  of  possession  by  the  purchaser  under  such  an  arrange- 
ment, and  makes  it  an  indelible  badge  of  fraud  and  a  forfeiture  of  the 
vendor's  reserved  title  as  in  favor  of  creditors  and  bona  fide  purchasers. 
The  doctrine  is  founded  upon  considerations  of  public  policy'  adopted 
in  that  State,  and  applies  to  the  fact  of  Dossession  and  acts  of  owner- 


SECT.  II.]  MARVIN   SAFE    CO.    V.   NORTON.  351 

ship  under  such  a  contract,  without  regard  to  the  place  where  the  con- 
tract was  made,  or  its  legal  effect  considered  as  a  contract.  In  McCabe 
V.  Blymjrv,  9  Phila.  Rep.  615,  the  controvers}'  was  with  respect  to  the 
rights  of  a  mortgagee  under  a  chattel  mortgage.  The  mortgage  had 
been  made  and  recorded  in  Maryland,  where  the  chattel  was  when  the 
mortgage  was  given,  and  by  the  law  of  Maryland  was  valid  though  the 
mortgagor  retained  possession.  The  chattel  was  afterwards  brought 
into  Pennsylvania,  and  the  Pennsylvania  court  held  that  the  mortgage, 
though  valid  in  the  State  where  it  was  made,  would  not  be  enforced  by 
the  courts  of  Pennsylvania  as  against  a  creditor  or  purchaser  who  had 
acquired  rights  in  the  property  after  it  had  been  brought  to  that  State ; 
that  the  mortgagee,  by  allowing  the  mortgagor  to  retain  possession  of 
the  property  and  bring  it  into  Pennsylvania,  and  exercise  notorious 
acts  of  ownership,  lost  his  right  under  the  mortgage  as  against  an  in- 
tervening Pennsylvania  creditor  or  purchaser,  on  the  ground  that  the 
contract  was  in  contravention  of  the  law  and  policy  of  that  State. 
Under  substantially  the  same  state  of  facts  this  court  sustained  the  title 
of  a  mortgagee  under  a  mortgage  made  in  another  State,  as  against  a 
bona  fide  purchaser  who  had  bought  the  property  of  the  mortgagor  in 
this  State,  for  the  reason  that  the  possession  of  the  chattel  by  the  mort- 
gagor was  not  in  contravention  of  the  public  policy  of  this  State.  Parr 
V.  Brady,  8  Vroom,  20]. 

The  public  policv  which  has  given  rise  to  the  doctrine  of  the  Pemn; 
svlvania  courts  i^  V('^\  nnd  th"  lom.  whiV-h  (Tivpi=i  pfft^nt  to  it  is  also 
local,  and  hns  no  Pxtirn^"'^'''''^^''^''^^  ofrnnU.  In  the  ease  in  hand  the  safe 
was  removed  to  this  State  by  Schwartz  as  soon  as  he  became  the  pur- 
chaser. His  possession  under  the  contract  has  been  exclusively  in  this 
State.  That  possession  violated  no  public  policy,  —  not  the  public 
policy  of  Pennsylvania,  for  the  possession  was  not  in  that  State  ;  nor 
the  public  policy  of  this  State,  for  in  this  State  possession  under  a  con- 
ditional sale  is  regarded  as  lawful,  and  does  not  invalidate  the  vendor's 
title  unless  impeached  for  actual  fraud.  If  the  right  of  a  purchaser, 
under  a  purchase  in  this  State,  to  avoid  the  reserved  title  in  the  origi- 
nal vendor  on  such  grounds  be  conceded,  the  same  right  must  be  ex- 
tended to  creditors  buying  under  a  judgment  and  execution  in  this 
State;  for,  by  the  law  of  Pennsylvania,  creditors  and  bona  fide  pur- 
chasers are  put  upon  the  same  footing.  Neither  on  principle  nor  on 
considerations  of  convenience  or  public  policy  can  such  a  right  be  con- 
ceded. Jnder  such  a  condition  of  the  law  confusion  and  uncertainty- 
jnjii£-title  to  property  wnnid  be  intrndirfd)  P"d  ^^^'^  t''nnsmis°'^'i  of 
the  title  to  movable  property,  the  s'^^n^j  ^f  wb^'"'>  ^'^  ^"  ^^^^^  Stnt.P  wnnld» 
^^pj^pt^di  ^^^^-  upon  our  laws,  but  upon  the  laws_and  public,  pnlicy  of  sistar 
States  or  foreign  countriesT  X~purchaser  of  chattels  in  this  State, 
^wETch  his  vencToT  had  obtained  in  Xew  York  or  in  most  of  our  sister 
States  under  a  contract  of  conditional  sale,  would  take  no  title ;  if  ob- 
tained under  a  conditional  sale  in  Pennsylvania,  his  title  would  be 
good  ;  and  the  same  uncertainty  would  exist  in  the  title  of  purchasers 
of  property  so  circumstanced  at  a  sale  under  judgment  and  execution. 


352  MASURY    V.    ARKANSAS    NATIONAL    BANK.  [CHAP.  VII. 

The  title  was  in  the  safe  company  when  the  propert}-  in  dispute  was 
removed  from  the  State  of  Pennsylvania.  Whatever  might  impair  that 
title  —  the  continued  possession  and  exercise  of  acts  of  ownership  over 
it  by  Schwartz  and  tlie  purcliase  by  Norton  —  occurred  in  this  State. 
The  legal  effect  and  consequences  of  those  acts  must  be  adjudged  by 
the  law  of  this  State.  By  the  law  of  this  State  it  was  not  illegal  nor 
contrary  to  public  policy  for  the  company  to  leave  Schwartz  in  posses- 
sion as  ostensible  owner,  and  no  forfeiture  of  the  company's  title  could 
result  therefrom  =  By  the  law  of  this  State  Norton,  by  his  purchase, 
acquired  only  such  title  as  Schwartz  had  under  his  contract  with  the 
company.  Nothing  has  occurred  which,  by  our  law,  will  give  liim  a 
better  title.  The  judgment  should  be  reversed. 


MASURY  V.    ARKANSAS  NATIONAL  BANK. 

Circuit  Court  of  the  Uxited  States,  E.  District  Arkansas.     1898. 
[Reported  87  Federal  Reporter,  381.] 

Tins  is  a  bill  in  equitj-  by  Grace  Masury  against  the  Arkansas  Na- 
tional Bank  and  others  to  cancel  a  sheriff's  sale  of  shares  in  a  corpo- 
ration, and  to  declare  and  foreclose  a  lien  on  the  stock.  The  cause 
was  heard  on  demurrer  to  the  bill. 

Williams,  District  Judge.  The  only  questions  involved  are  whether, 
under  the  statutes  of  Arkansas,  a  seizure  of  shares  of  the  capital  stock 
of  a  corporation  existing  under  *he  laws  of  that  State,  by  virtue  of  a 
writ  of  attachment,  or  under  executnon,  cakes  precedence  over  a  prior 
transfer  or  pledge,  not  transferred  en  the  books  of  the  corporation,  nor 
filed  for  record  in  the  office  of  the  county  clerk  of  the  count}-  in  which 
the  corporation  transacts  its  business,  and  whether  the  laws  of  this 
State  govern  such  a  transfer,  if  made  in  another  State.  As  to  the  last 
proposition,  learned  counsel  for  complainant  claim  that  Black  v.  Zach- 
arie,  3  How.  483,  is  conclusive  that  the  laws  of  New  York,  where  the 
transfer  was  made,  and  not  the  laws  of  Arkansas,  of  which  State  the 
company  was  a  corporation,  control.  The  question  involved  in  that 
suit  was  not  that  of  a  transfer  of  shares,  but  an  assignment  of  the 
equity  of  redemption  in  stock  previously  assigned  and  delivered  as  a 
pledge.     The  court  say  : 

"  We  admit  that  the  validity  of  this  assigtnment  to  pass  the  right  to 
Black  in  the  stock  attached  depends  upon  the  laws  of  Louisiana  [the 
domicil  of  the  corporation],  and  not  upon  that  of  South  Carolina  [where 
the  assignment  was  made].  From  the  nature  of  the  stock  of  a  corpora- 
tion, which  is  created  by  and  under  the  aulliority  of  a  State,  it  is  necessa- 
rily, like  every  otlier  attril)ute  of  the  corporation,  to  be  governed  bv  the 
local  law  of  that  State,  and  not  by  the  local  law  of  any  foreign  State." 

Judge  Lowell,  speaking  of  the  same  subject,  says  : 


SECT.  II.]  MASURY   V.    ARKANSAS    NATIONAL   BANK.  353 

"  Whatever  the  general  principles  of  international  law  in  relation  to 
assignments  of  personal  claims  may  be,  the  validity'  of  a  transfer  of 
stock  is  governed  by  the  law  of  the  place  where  the  corporation  is 
created."  Lowell,  Stocks,  §  50  ;  Hammond  v.  Hastings,  134  U.  S.  401, 
10  Slip.  Ct.  727  ;  Green  v.  Van  Buskirk,  7  Wall.  140. 

I  am  therefore  of  the  opinion  that,  unless  the  transfer  of  this  stock 
is  valid  under  the  laws  of  Arkansas,  the  State  whicli  created  the  cor- 
poration, the  laws  of  the  State  where  the  transfer  was  actually  made 
cannot  control. 


23 


354  EX  PARTE  POLLARD.   IN  RE  COURTNEY.    [CHAP.  VH. 


SECTIUN    III. 


Ex  PARTE   POLLARD.     Ix   ee    COURTNEY. 

Chancery.     1840. 

[Reported  Montague  4-  Chilly's  Reports,  239.] 

Lord  Cottenham.  L.  C'  The  short  result  of  the  facts  of  this  case, 
as  stated  in  the  special  case  by  which  I  am  bound,  is,  that  the  bank- 
rupts were  absolutely  entitled,  as  part  of  their  partnership  property,  to 
some  land  in  Scotland,  the  legal  title  being  in  George  Courtney,  one  of 
the  bankrupts  ;  that  the  firm,  being  indebted  to  the  petitioner,  George 
Pollard,  in  order  to  induce  him  to  give  them  further  credit,  deposited 
with  him  the  disposition  and  instrument  of  seisin,  being  the  title  deeds 
of  such  lands,  and  signed  and  gave  to  him  a  memorandum  in  writing, 
dated  the  1.3th  of  March,  1832,  declaring  that  they  thereby  gave  to 
Pollard  a  lien  upon  the  land  for  the  general  balance  of  all  or  any 
monies  that  then  were  or  might  thereafter  become  due  to  him  from 
them  to  the  extent  of  £2.000,  and  they  agreed  that  he  should  stand  in 
the  nature  of  an  equitable  mortgagee  thereof;  and.  on  demand,  they 
further  agreed  to  make,  do.  and  perfect  all  such  acts  for  the  better 
securing  to  him  of  any  such  monies  as  aforesaid  ;  that  Pollard,  relying 
upon  the  security  of  the  hereditaments  so  charged  to  him  as  aforesaid, 
continued  to  give  credit  to  the  bankrupts  to  the  time  of  their  bank- 
ruptcy, which  took  place  on  the  20th  December.  1832,  at  which  time 
he  was  a  creditor  for  the  sum  of  £1.027  -is.  ^d\  The  only  other  facts 
stated  in  the  special  case,  material  to  the  present  question,  is,  that  by 
the  law  of  Scotland  no  lien  or  equitable  mortgage  on  the  estate  in 
question  was  created  by  the  deposit  of  the  title  deeds,  or  by  the  writ- 
ten memorandum. >  The  question  is.  whetlier  Pollard  is,  under  the  cir- 
cumstances, entitled  to  have  his  debt  paid  out  of  that  part  of  the  estate 
of  the  bankrupts  which  consists  of  their  property  in  Scotland,  in  pref- 
erence to  their  general  creditors;  or.  in  other  words,  the  assignees 
being  liable  to  all  the  equities  to  which  the  bankrupt  was  subject, 
whether  such  a  deposit  and  agreement,  made  and  entered  into  in  this 
country,  gave  to  the  creditor  such  a  title  as  against  his  debtor  to  have 
the  agreement  performed  and  the  delit  paid  out  of  the  propert}'  in 
Scotland,  the  sulyect  of  such  deposit  and  agreement.  The  special  case 
also  finds  that  the  deposit  and  agreement  does  not  by  the  law  of  .Scot- 
land create  any  lien  or  equitable  mortgage  upon  the  estate.  By  this 
statement  of  the  law  of  Scotland,  which,  sitting  here,  I  must  consider 

^  The  opinion  only  is  given.  — Ko. 


SECT.  III.]  EX    PARTE    POLLARD.      IN    RE    COURTNEY.  355 

as  a  fact,  I  am  bound,  but  so  far  only  as  the  statement  goes,  and  that 
does  not  find  anything  contrary  to  the  well-known  rule,  that  obligations 
to  convey,  perfected  secundum  legem  domicilii^  are  binding  in  Scot- 
land, but  that  by  the  law  of  Scotland  no  lien  or  equitable  mortgage 
was  created  by  the  deposit  and  agreement ;  by  which  must  be  under- 
stood that  the  law  of  Scotland  does  not  permit  such  deposit  and  agree- 
ment to  operate  in  rem,  and  not  tliat  they  may  not  give  a  title  to  relief 
in  personam.  It  is  true  that  in  this  country  contracts  for  sale,  or 
(whether  expressed  or  implied)  for  charging  lands,  are  in  certain  cases 
made  by  the  courts  of  equity  to  operate  in  rem;  but  in  contracts 
respecting  lands  in  countries  not  within  the  jurisdiction  of  these  courts 
they  can  only  be  enforced  by  proceedings  in  personam,  which  courts  of 
equity  here  are  constantly  in  the  habit  of  doing  :  not  thereby  in  any 
respect  interfering  with  the  lex  loci  rei  sites.  If  indeed  the  law  of  the 
country  where  the  land  is  situate  should  not  permit  or  not  enable  the 
defendant  to  do  what  the  court  might  otherwise  think  it  right  to  decree, 
it  would  be  useless  and  unjust  to  direct  him  to  do  the  act ;  but  when 
there  is  no  such  impediment  the  courts  of  this  country-,  in  the  exercise 
of  their  jurisdiction  over  contracts  made  here,  or  in  administering 
equities  between  parties  residing  here,  act  upon  their  own  rules,  and 
are  not  influenced  by  any  consideration  of  what  the  effect  of  such  con- 
tracts might  be  in  the  country  where  the  lands  are  situate,  or  of  the 
manner  in  which  the  courts  of  such  countries  might  deal  with  such 
equities. 

The  observations  of  Lord  Hardwicke  in  Penn  v.  Baltimore,  1  Yes. 
454,  are  founded  upon  this  distinction.  In  Lord  Cranstown  v.  Johnston, 
3  Ves.  182,  Lord  Alvanley,  upon  principles  of  equity  familiar  in  this 
country,  set  aside  a  sale  in  the  Island  of  St.  Christopher,  by  the  laws 
of  which  country  the  sale  was  perfectly  good,  no  such  principles  of 
equity  being  recognized  by  the  courts  there,  saying,  "  With  regard  to 
any  contract  made  or  equity  between  persons  in  this  country  respect- 
ing lands  in  a  foreign  country-,  particularly  in  the  British  dominions, 
this  court  will  hold  the  same  jurisdiction  as  if  the}'  were  situated  in 
England."  In  Scott  v.  Nesbitt,  14  Ves.  442,  Lord  Eldon,  in  the  face  of 
the  master's  report  finding  that  there  was  no  law  or  usage  in  Jamaica 
for  a  lien  by  a  consignee  in  respect  of  supplies  furnished  to  the  estate, 
directed  consignees  to  be  allowed  such  expenditure  in  their  account 
with  encumbrancers.  Bills  for  specific  performance  of  contracts  for 
the  sale  of  lands,  or  respecting  mortgages  of  estates,  in  the  colonies 
and  elsewhere  out  of  the  jurisdiction  of  this  court,  are  of  familiar  occur- 
rence. VNVhy  then,  consistently  with  these  principles  and  these  authori- 
ties, shobld  the  fact,  that  by  the  law  of  Scotland  no  lien  or  equitable 
mortgage  was  created  by  the  deposit  and  memorandum  in  this  case, 
prevent  the  courts  of  this  country  from  giving  such  effect  to  the  trans- 
actions between  the  parties  as  it  would  have  given  if  the  land  had 
been  in  England?  ]lf  the  contract  had  been  to  sell  the  lands  a  specific 
performance  would  have  been  decreed ;  and  why  is  all  relief  to  be 


356  ACKEK   V.    PRIEST.  [CHAP.  VII. 

refused  because  the  contract  is  to  sell,  subject  to  a  condition  for 
redemption?  The  substance  of  the  agreement  is  to  charge  the  debt 
upon  the  estates,  and  to  do  and  perfect  all  such  acts  as  ma}-  be  neces- 
sary for  the  purpose ;  and  if  the  court  would  decree  specific  perform- 
ance of  this  contract,  and  the  completion  of  the  securit}-  accordhig  to 
the  forms  of  law  in  Scotland,  it  will  give  effect  to  this  equity  by  paying 
out  of  the  proceeds  of  the  estate  (which  being  part  of  the  bankrupt's 
estate  must  be  sold)  what  is  found  to  be  the  amount  of  the  debt  so 
agreed  to  be  charged  upon  it,  which  is  what  the  creditor  asks.  ^The 
special  case  finds,  that  the  deeds  were  deposited  and  the  agreement 
signed  by  the  bankrupts  in  order  to  induce  the  creditor  to  give  them 
further  credit,  and  that  he,  relying  upon  the  security  of  the  heredita- 
ments so  charged  to  him,  continued  to  give  credit  to  the  bankrupts  to 
the  time  of  their  bankruptcy.  *  The  transaction  is  in  no  respect  im- 
peached, and  there  is  no  competition  with  an^-  person  having  obtained 
a  title  under  the  law  of  Scotland.  The  only  parties  resisting  the  credit- 
or's claim  are  the  assignees,  who  are  bound  by  all  the  equities  which 
affected  the  bankrupts.  To  deny  to  the  creditor  the  benefit  of  this 
security  would  be  an  injustice  which,  if  unavoidable,  would  be  much 
to  be  regretted.  In  giving  effect  to  it  I  act  upon  the  well-known  rules 
of  equity  in  this  country-,  and  do  not  violate  or  interfere  with  any  law 
or  rule  of  property  in  Scotland,  as  1  only  order  that  to  be  done  which 
the  parties  may  by  that  law  lawfully  perform. 

I  reverse  the  judgment  of  the  Court  of  Review,  giving  to  the  creditor 
payment  of  his  debt  out  of  the  proceeds  of  the  estate. 

Judgment  of  the  Court  of  Review  reversed. 


ACKER  V.   PRIEST. 
Supreme  Court  of  Iowa.     1894. 

[Reported  92  Iowa,  610.] 

Deemer,  .7.^  The  plaintiffs  in  the  equity  suit  are  the  heirs  at  law  of 
Elizabeth  Priest,  deceased,  and  the  defendant,  Stephen  C.  Priest,  is  their 
father.  Mrs.  Priest  was  a  daughter  of  one  Joseph  Abrams.  Joseph 
Abrams  had  one  son  and  three  daughters,  besides  Mrs.  Priest.  In  the 
month  of  July,  1884,  Abrams.  who  was  then  living  in  the  State  of  Kan- 
sas, concluded  to  make  a  partial  distribution  and  advancement  of  his 
property  to  his  children.  He  was  then  the  owner  of  two  farms  in  Kan- 
sas, one  of  which  was  known  as  his  "  Home  Farm,"  and  the  other 
was  occupied  by  defendant  Priest  and  his  family.  Thomas  W.  King, 
another  son-in-law,  owned  and  occupied  another  and  a  third  farm  in 
the  same  county  as  tlie  other  two.  In  order  to  carry  out  his  purpose, 
and  make  an  equal  distribution  of  property  to  his  daughters,  Abrajns 

1  I'art  of  the  opinion  only  is  given.  —  Ed. 


SECT.  III.]  ACKER   V.   PRIEST.  357 

made  arrangements  with  King  .0  exchange  the  home  farm,  vahied  at 
$8,000,  for  the  King  place,  at  the  agreed  price  of  $4,000.  Prior  thereto, 
however,  Abrams  had  had  a  conversation  with  defendant  Priest,  in 
which  he  told  him  he  intended  to  give  him  a  farm.  After  making 
arrangements  with  King,  Abrams  informed  defendant  that  he  had  an 
opportunity  to  trade  the  home  fai-m  for  King's  land,  and  directed  de- 
fendant to  go  and  look  at  the  farm,  and  if  it  suited  him  he  (Abrams) 
would  make  the  exchange.  Defendant,  after  examining  the  place,  was 
pleased  with  it,  and  so  informed  Abrams,  and  Abrams  made  the  con- 
templated exchange.  Abrams  deeded  the  home  farm  to  King,  and 
King,  by  direction  of  Abrams,  and  with  the  knowledge,  direction,  and 
consent  of  the  deceased,  Mrs.  Priest,  made  a  deed  to  his  place  to  the 
defendant  Priest.  This  last  deed  was  a  warranty  deed,  in  the  usual 
form,  and  for  the  expressed  consideration  of  $4,000.  Shortly  after  the 
making  of  these  deeds,  the  defendant  moved  onto  the  King  farm,  and 
used  and  occupied  it  for  a  year  or  more,  when  he  sold  it,  and  with  tlie 
proceeds  purchased  a  farm  in  Cass  County,  Iowa,  from  one  Isabella 
G  >odale.  The  deed  to  the  Cass  Countj-  land  was  taken  in  the  name  of 
the  defendant  with  the  knowledge  and  consent  of  his  wife.  Defendant 
and  his  wife  immediately  took  possession  of  the  Cass  County  land,  and 
occupied  and  used  the  same  until  the  death  of  his  wife,  in  April,  1888. 
After  the  death  of  the  wife,  and  in  Ma}-,  1891,  the  defendant  sold  the 
land  in  Cass  County,  and  at  the  time  of  the  commencement  of  this  suit 
was  in  possession  of  a  large  part  of  the  proceeds  of  the  sale.  Plaintiffs 
claim  that  the  defendant  at  all  times  had  the  title  to  the  Kansas  land 
and  to  the  land  in  Cass  County  in  trust  for  his  wife,  Elizabeth  V.  Priest, 
and  that  the}',  as  her  heirs  at  law,  are  entitled  to  have  a  trust  impressed 
upou  the  funds  now  in  the  hands  of  the  defendant,  arising  out  of  the 
sale  of  the  Cass  County  land.  Defendant  Isaac  Dickerson  was  made  a 
party  to  the  suit  because  of  his  having  possession  of  some  of  the  funds 
arising  from  the  sale  of  the  land  in  this  State.   .   .   . 

Plaintiffs  do  not  —  nor,  indeed,  could  they,  under  the  statutes  of 
either  Kansas  or  of  this  State  —  claim  an  express  trust  in  the  land,  or 
the  proceeds  thereof.  Their  claim  is  that  from  the  transactions  between 
the  parties,  as  proved,  there  arose  an  implied,  a  resulting,  or  a  con- 
structive trust,  which  the  law  will  recognize  and  enforce.  We  turn  then 
to  the  evidence,  and  find  that  while  it  was  the  intention  of  Abrams  to 
make  a  partial  distribution  of  his  estate  among  his  heirs,  3'et  it  did  not 
appear  to  him  to  be  important  to  whom  he  made  the  deeds,  —  whether 
to  his  daughters,  in  their  own  names,  or  to  their  husbands.  The  deed 
to  the  home  farm  was  made  to  King,  the  husband  of  one  of  his  daugli 
ters,  and  the  deed  to  the  King  farm  was  made  direct  to  defendant 
Priest.  Abrams  had  previously'  spoken  to  defendant  about  giving  him 
a  farm,  and  while  the  deed  was,  no  doubt,  made  so  as  to  place  all  his 
children  on  an  equalit}',  it  is  quite  evident  to  us  that  it  was  wholly 
immaterial  to  him  to  whom  the  deed  should  be  made.  Before  hav- 
ing the  deed  made  to  defendant,  Abrams  spoke  to  his  daughter,  Mrs. 


358  ACKER   V.   PRIEST.  [CHAP.  VIL 

Priest,  about  how  the  deed  should  be  made,  and  "  she  said  to  make  it 
to  her  husband  ;  it  was  all  the  same."  Again,  Abrams  testifies,  "  My 
dauo^hter  gave  no  reason  [for  making  the  deed  to  her  husband],  except 
that  it  would  be  all  right,  recognizing  him  as  her  husband."  Even  if 
Abrams  intended  the  deed  to  be  for  the  benefit  of  Mrs.  Priest  and  her 
children,  as  he  says,  he  did  not  so  state  to  defendant,  and  defendant 
had  no  knowledge  but  that  he  was'to  take  the  beneficial  as  well  as  the 
legal  estate.  Abrams  directed  King  to  make  the  deed  to  defendant, 
and  King  had  no  conversation  whatever  with  defendant. 

Applying  these  facts  to  the  statutes  of  Kansas,  before  quoted,  with 
reference  to  the  creation  of  trusts,^  and  it  is  clear  that  defendant  took 
an  absolute  title  to  the  land  deeded  him  by  King,  unincumbered  with 
any  trust.  It  is  contended,  however,  that  the  laws  of  Kansas  have  no 
application  to  this  case,  that  the  statutes  above  quoted  relate  simply  to 
the  remedy,  and  that  the  lex  fori  governs.  Without  deciding  this  ques- 
tion, so  far  as  it  relates  to  the  statute  of  frauds,  for  it  is  not  necessary 
to  a  determination  of  the  case,  and  passing  it  with  the  single  remark 
that  where  the  statute  relates  simply  to  the  remedy,  and  does  not  make 
the  parol  contract  void,  as  is  the  case  with  the  statute  in  question,  there 
is  much  force  in  appellants'  position,  we  are  clearly  of  the  opinion, 
however,  that  the  other  statutes  with  reference  to  the  creation  of  trust 
estates  are  l)inding,  for  they  go  to  the  validity  and  operation  of  the  con- 
tract, and  of  the  alleged  trust  in  the  land.  It  is  familiar  doctrine 
that  the  law  of  the  place  where  the  contract  is  made  is  to  govern  as  to 
its  nature,  validity,  obligation,  and  interpretation,  and  the  law  of  the 
forum  as  to  the  remedy.  Bank  v.  Donnally,  8  Pet.  316  ;  Scudder  v. 
Bank,  91  U.  S.  406  ;  Burchard  v.  Dunbar,  82  111.  450.  It  is  also  every- 
where acknowledged  that  the  title  and  disposition  of  real  property  are 
exclusively  subject  to  the  laws  of  the  country  where  it  is  situated,  which 
can  alone  prescribe  the  mode  by  which  a  title  to  it  can  pass  from  one 
person  to  another.  Kerr  v.  Moon,  9  Wheat.  565  ;  McCormick  v.  Sul- 
livant,  10  Wheat.  196.  And  a  title  or  right  in  or  to  real  estate  can  be 
acquired,  enforced,  or  lost  only  according  to  the  law  of  the  place  where 
such  property  is  situated.  Bentley  v.  Whittemore,  18  N.  J.  Eq.  373  ; 
Hosford  r.  Nichols,  1  Paige,  220  ;  Williams  v.  Maus,  6  Watts,  278  ; 
Wills  V.  Cowper,  2  Ohio,  124. 

If  we  are  correct  in  otir  premises,  it  necessarily  follows,  as  a  conclu- 
sion, that  under  the  laws  of  Kansas  there  was  no  trust  created  by  law 
in  the  Kansas  land,  even  if  it  be  said  that  Mrs.  Priest  furnished  the 
consideration  paid  for  the  land,  because  there  was  no  agreement  on 
thr  part  of  the  defendant  that  he  should  hold  the  title  in  trust  for  his 
wifu.^ 

1  Gen.  St.  K.in.  1808,  c.  114,  §  G.  When  a  conveyance  for  a  valuahlc  consideration 
is  made  to  one  person,  and  the  consideration  tliereof  paid  by  anotlicr,  no  nse  or  trust 
Bliall  result  in  favor  of  the  latter,  but  the  title  sliall  vest  in  the  former,  subject  to  the 
provisions  of  the  next  two  sections.  —  Ed. 

2  The  court  further  held  that  apart  from  the  statutes  of  Kansas  there  was  no  trust. 
Ace.  Depas  i'.  Mayo,  11  Mo.  314  ;  I'eufield  i-.  Tower,  1  N.  D.  216.  —  Ed. 


SECT.  III.]     NORTON  V.  FLORENCE  LAND  AND  PUBLIC  WORKS  CO.  359 


NORTON  V.   FLORENCE  LAND  AND  PUBLIC  WORKS 
COMPANY. 

High  Court  of  Justice,  Chancery  Division.     1877. 

[Reported  7  Ch.  D.  332.] 

This  was  a  motion  on  behalf  of  the  holders  of  obligations  issued  by 
the  Florence  Land  and  Public  Works  Company  to  restrain  the  Anglo- 
Italian  Bank  from  selling  the  company's  property  at  Florence,  of  which 
they  were  mortgagees. 

The  company,  whose  property  consisted  partly  of  land  and  houses 
at  Florence,  was  registered  under  the  Companies  Act,  1862,  with  an 
office  in  London.  By  the  articles  of  association  it  was  empowered  to 
issue  "  debenture  bonds"  and  "mortgage  bonds." 

In  1868  the  company,  under  the  powers  of  the  articles,  issued  obliga- 
tions in  the  following  form  : — 

"  The  Florence  Land  and  Public  Works  Company,  Limited,  in  con- 
sideration of  the  sum  of  £100  advanced  and  lent  to  them  by  , 
do  hereby,  in  pursuance  and  under  the  power  of  their  articles  of 
association,  bind  themselves,  their  successors,  assigns,  and  all  their 
estate,  property,  and  effects,  to  pay  to  the  said  ,  or  bearer, 
on  presentation  of  this  bond  at  the  registered  office  of  this  company  in 
England,  the  said  principal  sum  of  £100  on  tiie  24th  day  of  June,  1875, 
and  also  interest  on  the  said  principal  sum  of  £100  until  paid,  at  the  rate 
of  £6  per  cent  per  annum,  at  the  times  and  places  mentioned  in  the 
coupons  attached  hereto  :  Provided  also,  and  it  is  hereby  declared,  that 
this  bond  is  issued  subject  to  the  condition  and  scale  indorsed  hereon." 

In  March,  1871,  the  Anglo-Italian  Bank,  which  had  an  office  in  Lon- 
don, entered  into  an  agreement  with  the  company  to  open  a  credit  in 
the  coini)any'  s  favor  for  £50,000,  the  amount,  together  with  future 
advances,  to  be  secured  by  a  mortgage  upon  the  property  of  the  com- 
pany in  and  near  Florence,  This  was  accordingly  executed  in  the 
Italian  form  on  the  30th  of  ^March,  1871,  and  registered  at  Florence,  to 
secure  £50,000,  and  a  further  sum  of  £5000. 

On  the  14th  of  August,  1877,  the  company  was  served  in  Flor- 
ence with  a  citation  to  appear  before  the  Civil  and  Correctional  Tri- 
bunal of  Florence,  at  an  audience  to  be  held  on  the  29th  of  August, 
1877,  to  hear  accorded  executive  force  in  the  kingdom  of  Italy  to  the 
said  mortgage,  and  to  hear  authority  given  to  the  proper  officer  for 
the  execution  thereof.  This  citation  was  issued  at  the  instance  of  the 
bank  in  order  to  enforce  their  security,  and  judgment  was  obtained 
thereon  giving  validity  to  the  deed,  and  enforcing  payment.  The  bank 
were  about  to  take  steps  for  the  sale  of  the  property. 

The  plaintiff,  a  holder  of  the  said  obligations,  thereupon  brought  his 
action,  claiming  a  declaration  that  the  plaintiff  and  the  other  debenture 
holders  were  mortgagees  of  the  company's  property  at  Florence  in 
priorit}-  to  the  bank. 


360        NORTON  V.  FLORENCE  LAND  AND  TUBLIC  WORKS  CO.     [CHAP.  VII. 

The  plaintiff  alleged  that  the  bank  had  notice  of  the  charge  on  the 
property  created  b}'  the  obligations.  No  evidence  was  adduced  as  to 
tlie  rights  of  the  parties  according  to  the  law  of  Italy. ^ 

Jessel,  M.  R.  I  am  of  opinion  that  the  motion  fails,  and  I  think  it 
ought  to  fail  on  every  ground  suggested.  In  the  first  instance,  I  as- 
sume that  the  instrument  created  a  charge  on  property  ;  it  would  then 
be  a  charge  on  all  the  property  and  effects  of  the  company.  It  appears 
that  the  compan}-  had  houses  and  land  in  Florence,  which,  of  course,  is 
out  of  my  jurisdiction,  and  would  be  subject  to  the  law  of  Florence 
and  to  Italian  law.  It  also  appears  that  the  defendants,  the  bank,  ad- 
vanced mone}'  to  the  company,  and  took  a  mortgage  which  was  regis- 
tered according  to  tlie  law  of  Florence,  and  as  they  insist,  takes  priority 
over  ever}-  unregistered  charge.  That  may  or  may  not  be  so,  the 
Italian  law  not  being  proved  before  me  b}'^  the  plaintiff,  and  it  is  for 
him  to  show  that  he  has  a  charge  according  to  the  Italian  law. 

Now  he  has  not  proved  it,  because  he  has  not  proved  the  Italian  law  ; 
therefore  I  must  for  the  present  purpose  assume,  as  against  him,  that 
there  is  a  want  of  registration,  or  that  otherwise  he  has  no  charge. 
But  then  he  says.  Not  having  a  charge  according  to  the  Italian  law  on 
the  houses  in  Florence,  I  am  still  entitled  to  take  them  away  from 
those  who  are  entitled  to  them  according  to  the  Italian  law,  for  this 
reason  :  I  have  a  contract  by  the  former  owner  of  the  houses  to  convey 
them  to  me  —  I  am  putting  it  as  strongly  as  possible  in  his  favor  —  and 
the  present  defendants  have  obtained  a  conve^'ance  of  the  house  which 
was  more  valid,  according  to  the  Italian  law,  with  notice  of  my  j^rior 
contract,  and  I  am  entitled  to  enforce  that  contract  not  only  against  the 
contracting  party,  but  against  every  person  who  had  notice  of  that 
contract. 

The  answer  is  ver}'  simple.  It  depends  on  the  law  of  the  country 
where  the  immovable  propert}'  is  situated.  If  the  contract  according 
to  the  law  of  that  country  binds  the  immovable  property,  as  it  does  in 
this  country,  when  for  value,  that  ma}'  be  so,  but  if  it  does  not  bind  the 
immovable  property,  then  it  is  not  so.  You  cannot  by  reason  of  notice 
to  a  third  person  of  a  contract  which  does  not  bind  the  property  there- 
by bind  the  propert}'  if  the  law  of  the  country  in  which  the  immovable 
property  is  situate  does  not  so  bind  it.  That  would  be  an  answer  to 
the  claim  so  far  as  regards  the  notion  that  mere  notice  would  do. 

But  there  is  another  answer  to  the  plaintiff's  motion.  It  seems  that 
these  houses  being  in  Florence  the  bank  has  taken  precedence  in  the 
Court  of  Florence,  the  proper  court  having  jurisdiction,  to  establish 
their  title  ;  and  the  litigation  there  to  which  the  plaintiffs  are  or  may  be 
parties  being  in  the  court  of  the  country  having  actual  jurisdiction  over 
the  subject-matter,  and  having  entertained  that  jurisdiction  by  a  prior 
litigation,  it  is  contrary  to  all  the  rules  of  the  comity  of  nations  that 
tliis  court  should  actively  interfere  between  the  same  litigants.  That 
also  appears  to  me  to  be  an  answer  to  this  application. 

1  The  statement  of  fiii't.s  lias  been  slightly  condensed. — Ed. 


SECT.  III.]  -  IN    RE    FITZGERALD.  361 

But  there  is  a  third,  and,  in  mv  opinion,  a  fatal  answer,  which  is, 
that  if  the  law  of  England  does  apply,  still,  as  I  read  this  docu- 
ment, the  plaintiff  has  no  charge  on  the  houses  in  Florence.  That  is, 
supposing  it  were  property  in  Lontlon  instead  of  in  Florence,  I  should 
hold  that  the  plaintiff  had  no  cliarge  on  it  whatever.^ 

The  motion  must  be  refused  with  costs.^ 


In  re  FITZGERALD. 

High  Court  of  Justice,  Chancery  Division.     1903. 

Court  of  Appeal.     1904. 

[Reported  1903,  1  Ch.  933,  1904,  1  Ch.  .573.] 

By  an  indenture  of  settlement  dated  September  20,  1862,  and  made 
between  William  Robert  Seymour  Vese}'  Fitzgerald  of  the  first  part,  the 
defendant  Sir  William  Gerald  Seymour  Vese}'  Fitzgerald  (hereinafter 
called  Sir  Gerald  Fitzgerald)  of  the  second  part,  Jane  Margaret  Matilda 
Macdonald  Lockhart  of  the  third  part,  and  trustees  of  the  fourth  part 
(being  a  settlement  made  upon  the  marriage  of  Sir  Gerald  Fitzgerald 
and  Miss  Lockhart),  W.  R.  S.  V.  Fitzgerald  covenanted  that  his  heirs, 
executors,  and  administrators  would,  within  six  months  of  his  death, 
pay  to  the  trustees  the  sum  of  6000^.,  to  be  held  bj^  them  upon  trust 
for  investment  as  therein  mentioned,  and  to  pay  the  income  of  the  trust 
fund  to  Sir  Gerald  Fitzgerald  and    his    assigns  during  his  life,    and 
after  his  death  to  Lady  Fitzgerald  and  her  assigns  during  her  life,  and 
after  the  death  of  the  survivor  to  stand  possessed  of  the  trust  fund  in 
trust    for   the   issue  of  the    intended  marriage    as   therein    declared. 
This  settlement  was  in  English  form,  but  was  executed  in  Scotland, 
where  the  marriage  took  place.     On  the  same  date  a  marriage  contract 
in    Scotch  form  was  executed  b}'  Sir  Gerald  and  his  then  intended  wife, 
whereby,  after  reciting  the  English  settlement,   she  assigned  and  con- 
veyed to  the  same  trustees  all  and  sundry  the   lands  and  heritages, 
goods,  gear,  debts,  and  sums  of  monev,  and  generally  her  whole  prop- 
erty (with  certain  small  exceptions),  to  the  uses  and  purposes  therein- 
after mentioned,  namely,  first,  for  payment  of  the  expenses  of  executing 
the  trust ;  secondlj',  for  payment  of  the  free  annual  proceeds  of  the 
trust  estate  to  the  said  J.  M.  M.  Lockhart  during  all  the  days  of  her 
life,  and  that  on  her  own  receipt  alone,  exclusive  of  the  Jus  mnriti 
and  right  of  administration  of  the  said  Sir  Gerald  Fitzgerald  ;  thirdh% 
in  case  the  said  Sir  Gerald  Fitzgerald  should  be  the  survivor  of  the 
spouses,  for  pa3'ment  of  the  whole  free  annual  proceeds  of  the  estate 
to  him  during  all  the  days  of  his  life  after  the  death  of  the  said  J. 
]\[.  M.  Lockhart,  declaring  that  all  payments  to  the  said  Sir  Gerald 
Fitzgerald  should  be  strictlj'  "  alimentarj-,"  and  should  "  not  be  assign- 

1  The  remainder  of  the  opinion,  in  which  this  point  was  discussed,  is  omitted. — Ed. 

2  See  Mercantile  I.  &  G.  T.  Co.  v.  River  Plate  T.  L.  &  A.  Co.,  (1892)  2  Ch.303.— Ed. 


362  IN    RE   FITZGERALD.  [CHAP.  VII. 

able,  nor  liable  to  arrestment,  or  any  other  legal  diligence  at  the  instance 
of  the  creditors." 

Shortl}'  after  the  execution  of  these  instruments  the  marriage  took 
place.  There  was  on!}'  one  child  of  the  marriage,  the  defendant 
Geraldine  Tryphoena  Margaret  Seymour  Vesey  Fitzgerald,  who  was 
born  on  June  19,  1863. 

Between  the  3'ears  1863  and  1901  numerous  deeds  were  executed  in 
England  by  Sir  Gerald  and  Lady  Fitzgerald,  in  some  of  which  Miss 
Fitzgerald  joined,  creating  incumbrances  upon  their  respective  inter- 
ests under  the  P^nglish  and  Scotch  settlements.  Subsequently  to  1901 
Sir  Gerald  further  incumbered  his  life  interest  under  the  settlements. 
The  defendant,  Colonel  Frederick  Henry  Harford  was  the  first  mortga- 
gee of  Sir  Gerald's  life  interest  under  the  Scotch  settlement. 

Lady  Fitzgerald  died  on  May  16,  1901. 

This  was  a  summons  taken  out  on  October  12,  1901,  bj-  the  trustees, 
who  were  all  domiciled  in  England,  asking  (inter  alia)  that  it  might  be 
determined  whether  Sir  Gerald  Fitzgerald  was  entitled  for  his  life  to 
the  income  of  the  trust  funds  comprised  in  the  Scotch  contract  of 
marriage  free  from  incumbrance  and  without  power  of  alienation,  or 
who  was  now  entitled  to  the  said  income. 

The  trust  funds  originally  comprised  in  the  Scotch  contract  consisted 
partly  of  two  bonds  of  the  respective  values  of  6000^.  and  7200/.,  se- 
cured upon  heritable  or  immovable  property-  in  Scotland.  The  whole  of 
the  6000Z.  and  a  portion  of  the  7200/.  still  remained  so  invested.  B\- 
the  law  of  Scotland  heritable  bonds  of  this  character  are  real  property, 
except  for  certain  purposes  specified  in  the  Titles  to  Land  Consolidation 
(Scotland)  Act,  1868  (31  &  32  Vict.  c.  101),  s.  117. 

It  appeared  from  an  affidavit  made  by  the  Lord  Advocate  of  Scot- 
land that  by  the  law  of  Scotland  a  person  might  create  a  life  interest  in 
favor  of  another,  and  b}'  declaring  it  to  be  "  alimentary "  might  ex- 
clude (so  far  as  the  life  interest  did  not  exceed  in  amount  a  reasonable 
provision)  the  diligence  of  ordinary  creditors,  and  restrain  all  power 
of  anticipation. 

It  further  appeared  that  by  the  law  of  Scotland,  if  in  the  case  of 
such  an  alimentary  provision  as  was  in  question  in  the  present  case, 
the  husband  failed  to  maintain  the  children  of  the  marriage,  they  would 
be  entitled  to  attach  the  alimentary  provision  made  for  him  by  the 
contract. 

The  principal  question  arising  on  the  summons  was  whellier  tlie 
Scotch  contract  must  be  construed  according  to  the  law  of  Scotland 
or  that  of  England. 

Joyce,  J.  (after  stating  the  facts  as  to  the  marriage,  and  referring 
to  the  terms  of  the  Scotcii  contract).  Under  the  provisions  of  this 
document,  which  I  may  call  the  Scotch  settlement,  the  trustees  have 
from  time  to  time  become  entitled  to  receive  and  had  vested  in  them 
various  funds  comprising  (inter  alia)  Scotch  mortgages  or  heritable  bonds 
and  sums  of  Consols  and  India  stock,  but  not  any  Scotch  real  or  im- 


SECT.  III.]  IN    RE   FITZGERALD.  363 

movable  estate  other  than  mortgages  or  heritable  securities,  if  they  be, 
as  alleged,  real  estate  and  to  be  treated  as  immovable  property. 

Lady  Fitzgerald,  the  wife,  died  in  1901.  Sir  Gerald  having  previ- 
ously, as  he  has  also  since  that  date,  and  in  some  cases  with  the  con- 
currence of  his  wife,  executed  in  England  vai'ious  assignments  of  or 
charges  upon  his  interest  under  the  Scotch  settlement,  the  question 
has  arisen  whether  the  income  or  alimentary  provision  to  which  Sir 
Gerald  Fitzgerald  has  become  entitled  under  the  Scotcli  settlement  is 
now  payable  by  the  trustees  to  Sir  Gerald  or  to  his  assigns  and  incum- 
brancers. It  is  contended  on  behalf  of  Sir  Gerald  and  the  only  child 
of  the  marriage  that,  according  to  the  law  of  Scotland,  which  it  is  said 
governs  the  case,  the  effect  of  the  declaration  in  the  Scotch  settlement 
that  all  payments  to  Sir  Gerald  shall  be  alimentary  and  not  assignable 
or  liable  to  arrestment,  precluded  Sir  Gerald  from  assigning  or  creating 
any  valid  incumbrance  upon  the  income  to  which  he  would  otherwise 
be  now  entitled  under  the  trusts  of  the  Scotch  settlement. 

The  domicil  of  Sir  Gerald  has  remained  P^nglish  all  along.  His  resi- 
dence is  in  England.  The  trustees  are  all  subject  to  the  jurisdiction  of 
the  English  Court.  Indeed,  it  is  they  who  have  involved  its  aid  in 
order  to  determine  the  question  that  has  been  raised.  In  the  existing 
circumstances,  even  if  the  construction  and  legal  effect  of  this  Scotch 
settlement  are  to  be  determined  by  the  law  of  Scotland  —  In  re  Bar- 
nard, 56  L.  T.  9  —  it  appears  to  me  that  its  validity  and  operation  with  re- 
spect to  the  matter  now  in  question  must  be  determined  by  the  laws  of 
England  :  Westlake  on  International  Law,  p.  76  ;  Vaizey  on  Settlements, 
p.  1640,  et  seq. 

Further,  if  the  question  were  to  be  considered  as  one  purely  of  con- 
tract between  the  parties  to  the  Scotch  settlement,  a  contract  incon- 
sistent with  the  law  and  policy  of  this  country,  or,  in  other  words, 
which  conflicts  with  what  are  deemed  in  England  to  be  essential  public 
interests,  could  not  be  enforced  here  :  Westlake  on  International  Law, 
3rd  ed.  s.  215. 

But  according  to  the  law  of  England  an  inalienable  trust  cannot  be 
created  in  favor  of  a  man  even  for  his  maintenance.  A  mere  prohibi- 
tion of  alienation  cannot  be  effectually  imposed  except  in  the  case  of 
a  married  woman's  separate  property:  Brandon  v.  Robinson,  18  Ves. 
429;  11  R.R.  226;  Graves  v.  Dolphin,  1  Sim.  66;  27  R.  R.  166; 
Younghusband  v.  Gisborne  (1844),  1  Coll.  400.  It  is  contrary  to  the 
policy  of  the  law  in  this  country  that  property  should  be  so  settled 
as  to  continue  in  the  enjoyment  of  a  bankrupt  notwithstanding  bank- 
ruptcy. In  other  words,  the  declaration  in  the  Scotch  settlement 
that  all  payments  to  Sir  Gerald  shall  not  be  assignable  or  liable  to 
arrestment  at  the  instance  of  creditors  is  void  and  inoperative  according 
to  English  law,  being  repugnant  and  contrary  to  public  policy. 

It  can  hardly  be  doubted  that,  so  far  as  relates  to  the  pure  personalty 
or  movable  property  comprised  in  the  Scotch  settlement,  the  law  of  Eng- 
land must  govern  the  case.     And  upon  consideration,  having  regard  to 


364  IN    RE    FITZGERALD.  [CIIAP.  VII. 

the  frame  of  the  settlement,  I  think  there  is  no  difference  with  respect 
to  such  part,  if  any,  of  the  funds  or  securities  comprised  in  the  settle- 
ment as  ought,  according  to  the  law  of  Scotland,  to  be  treated  and 
considered  as  real  or  immovable  property.  What  Sir  Gerald  has 
is  a  personal  claim  against  the  trustees  for  pa3'ment  of  the  residue 
of  the  income  derived  from  the  several  investments  for  the  time 
being  subject  to  the  Scotch  settlement,  after  payment  thereout  of 
all  the  expenses  of  executing  the  trusts,  1  think  that  the  decision  of 
the  House  of  Lords  in  Scott  a.  Allnutt,  2  Dow  &  CI.  404,  cited  in 
Story  on  the  Conflict  of  Laws,  applies.  See  also  per  Lord  Notting- 
ham in  Noell  v.  Robinson  (1681),  2  Vent.  358.  It  is  unnecessary, 
therefore,  to  consider  whether,  even  if  this  were  not  so,  the  in- 
come as  soon  as  it  came  to  the  hands  of  Sir  Gerald  would  not  be 
bound  in  equity  bj'  the  assignments  he  has  made,  so  as  to  render 
him  liable  to  be  restrained  by  injunction  from  disposing  of  such  in- 
come otherwise  than  by  payment  to  his  assignees.  It  is  also,  I  think, 
unnecessary  to  consider  whether,  if  it  could  be  shown  that  as  to  anj' 
part  of  the  property  comprised  in  tlie  Scotch  settlement  (e.  //.,  the  por- 
tion consisting,  or  that  did  consist,  of  heritable  bonds  or  Scotch  mort- 
gages) the  law  applicable  was  prima  facie  that  of  Scotland,  such  law 
ought  not  to  be  enforced  in  the  courts  of  this  country,  upon  the 
ground  that  it  would  result  in  injustice  to  English  creditors  or 
incumbrancers. 

Upon  the  whole,  I  am  of  opinion  that  in  the  circumstances  of  the 
present  case  Sir  Gerald  Fitzgerald  is  not  entitled  to  require  payment  to 
himself  of  the  income  of  the  trust  funds  as  being  free  from  incum- 
brances or  without  power  of  anticipation,  but  that  his  assignees  or  in- 
cumbrancers are  the  persons  entitled  to  receive  paj'ment  from  the 
trustees  of  the  Scotch  settlement. 

Sir  Gerald  appealed. 

Cozens-Hardy,  L.J.  The  first  question  for  consideration  on  this 
appeal  is  whether  what  I  may  shortly  describe  as  the  Scotch  settle- 
ment is  subject  to  the  law  of  Scotland,  or  whether  it  must  be  governed 
by  English  law.  Now  this  Scotch  settlement  dealt  with  the  property 
of  a  domiciled  Scotch  lady,  who  was  al)out  to  marry  a  domiciled 
Englishman,  and  there  is  no  doubt  but  the  "matrimonial  domicil " 
was  English.  It  is  not  .ssuggested  that  a  permanent  residence  in 
Scotland  after  the  marriage  vvas  contemplated.  As  a  general  rule  the 
law  of  the  matrimonial  domicil  is  auplicable  to  a  contract  in  con- 
sideration of  marriage.  But  this  is  nnt  an  absolute  rule.  It  yields 
to  an  express  stipulation  that  some  other  law  shall  apply.  See  Van 
Grutten  v.  Digby  (18G2),  31  Beav.  561,  in  which  case  the  matrimonial 
domicil  was  French,  but  the  contract,  though  made  in  France  and  void 
by  French  law,  was  nevertheless  treated  by  Sir  John  Romilly  as  valid 
so  far  as  it  related  to  property  witiiin  the  jurisdiction.  See  also 
Viditz  IK  O'Hagan  (1899),  2  Ch.  5G9.  The  decision  in  that  case  was 
reversed  by  the  Court  of  Appeal.  ])nt  not  on  the  ground  in  any  way 


SECT.  III.]  IN    RE    FITZGERALD.  365 

affecting  this  point.  It  is  not  necessary  that  there  should  be  an  ex- 
press stipulation.  It  is  sufficient  if  the  court  arrives  at  the  conclusion 
that  the  parties  in  fact  contracted  with  reference  to  some  law  other 
than  that  of  the  matrimonial  domicil. 

Applying  these  principles  to  the  Scotch  settlement,  I  find  several  im- 
portant indications.  (a)  The  great  bulk  of  the  property,  namely, 
13,200/.,  was  invested  in  heritable  bonds.  It  has  been  settled  by  a 
chain  of  authorities,  which  ought  not  now  to  be  reviewed  b}'  us,  namely, 
by  Grant  M.R.,  in  Johnstone  v.  Baker,  4  Madd.  474,  n.,  by  Leach  M.R. 
in  Jerningham  r.  Herliert,  4  Russ.  388;  28  R.  R.  136,  and  by  Wig- 
ram  V.-C.  in  Allen  v.  Anderson  (1846),  5  Hare,  163,  that  heritable 
bonds  must  be  regarded  in  our  courts  as  immovables.  If  so,  it  can 
scarcely  be  denied  that  the  lex  loci  —  i.  e.,  the  law  of  Scotland  —  must 
appl}'  to  the  extent  of  the  13,200/.  I  am  aware  that  there  has  been  a 
change  of  investment  of  part  of  this  sum  into  English  securities,  but 
this  change  cannot  alter  the  law  applicable  to  the  settlement.  I  may 
add  that,  as  to  the  13,200/.,  the  matter  does  not  rest  in  contract. 
There  is  an  actual  completed  assignment  of  the  heritable  bonds.  (6) 
There  was,  however,  500/.  cash  belonging  to  the  lady,  which  was  paid 
over  to  the  trustees  for  investment,  and  which  was,  in  fact,  invested  in 
Consols,  although  it  might  have  been  invested  in  heritable  securities  in 
Scotland.  It  seems  to  me  that  this  sum  cannot  fairly  be  treated  as 
intended  to  be  subject  to  a  different  law  from  that  wliich  is  applicable 
to  the  bulk  of  the  propert}'.  (c)  The  whole  frame  of  the  settlement  is 
in  Scotch  form,  and  the  limitations  are  of  such  a  nature  that  they  can 
onl}'  take  effect  if  Scotch  law  is  to  be  applied.  I  therefore  feel  bound 
to  treat  this  as  a  settlement  made  in  Scotland  b\'  a  domiciled  Scotch 
lady  of  Scotch  propert}',  in  Scotch  form,  and  subject  to  Scotch  law. 
The  trustees  of  this  Scotch  settlement  must  in  Scotland  follow  the  Scotch 
law,  and  their  residence  in  England,  or  their  English  domicil,  is  irrelevant. 
This  being  so,  it  follows,  in  m^'  opinion,  that  we  are  bound  to  hold  that 
Sir  Gerald  Fitzgerald  takes  such  interest,  and  such  interest  only,  as  the 
courts  in  Scotland  would  declare  him  entitled  to  :  Ansthruther  v.  Adair, 
2  My.  &  K.513  ;  39  R.R.  263.  There  ought  to  be  no  difference  in  a  matter 
of  this  kind  between  the  Court  of  Sessions  and  the  High  Court.  The  na- 
ture and  extent  of  his  interest  cannot  depend  upon  his  domicil,  although 
his  capacity  to  deal  with  his  interest  ma}'  perhaps  depend  upon  his 
domicil.  To  take  the  somewhat  analogous  case  of  a  life  interest  in 
English  property  given  b}'  the  will  of  a  domiciled  Englishman  for  the 
separate  use  of  a  married  woman,  without  power  of  anticipation,  it 
has  never,  so  far  as  I  am  aware,  been  suggested  that  the  nature 
and  extent  of  her  interest  varied  according  as  her  domicil  was,  or  was 
not,  English.  The  trust  would  be  regarded  in  our  courts  as  valid  and 
operative,  even  though  by  the  law  of  her  domicil  neither  the  separate 
use  nor  the  restraint  upon  anticipation  was  recognized.  And,  on  gen- 
eral principles,  the  same  view  ought  to  be  adopted  by  the  courts  of 
the  country  in  which  the  married  woman  was  domiciled.     In  short,   by 


366  IN    RE   FITZGERALD,  [CHAP.  VII. 

the  law  of  England,  it  is  the  Scotch  law  which  must  be  applied  to 
this  Scotch  settlement. 

It  is,  however,  strongly  urged  that  a  strictly  alimentary  provision 
for  an   adult  male  is  not  only  unknown  to  and  inconsistent  with  the 
provisions  of  English  law,  as  in  general  it  undoubtedly  is,  but  that  it  is 
contrary  to  public  policy,  and  ought  therefore  to  be  wholly  disregarded 
in  an  English  court.     I  cannot  adopt  this  argument.     There  is  nothing 
immoral  in  such  a  provision.     Indeed,  there  are  many  instances  in 
which  pensions  or  retiring  allowances  are  by  statute  made  not  trans- 
ferable, or  liable  to  be  attached  by  any  legal  process.     I  may  refer  to 
the  pension   allowed  to  a  retiring  clergyman  under  the  Incumbents' 
Resignation  Act,  1871,  and  to  the  observations  of  the  Court  of  Appeal 
on  that  statute  in  Gathercole  v.   Smith  (1881),  17  Ch.  D.  1.     More- 
over,  it  has  been  long  settled  that  at  common  law,  and   apart   from 
any    statutory  enactments  prohibiting  assignment,  certain  salaries  or 
pensions    are  inalienable.      For  example,  the  half-pay   of  an  officer. 
In  Flarty   v.    Odium   (1790),   3  P.   R.  681,   682;  1  R.  R.   791,   Lord 
Kenyon  said  :  "  I  am  clearly  of  opinion  that  this  half-pay  could  not  be 
legally  assigned  by  the  defendant.   .   .   .  Emoluments  of  this  sort  are 
granted  for"  the  dignity   of  the  State,  and   for  the  decent  support  of 
those  persons  who  are  engaged  in  the  service  of  it.     It  would  therefore 
be  highly  impolitic  to  permit  them  to  be  assigned ;  for  persons,  who 
are  liable  to  be  called  out  in  the  service  of  their  country,  ought  not  to 
be  taken  from  a  state  of  poverty.   ...  It  might  as  well  be  contended 
that  the  salaries  of  the  judges,  which  are  granted  to  support  the  dig- 
nity of  the  State  and  the  administration  of  justice,  may  be  assigned." 
In  the  following  year  the  same  question  came  up  for  consideration  in 
Lidderdale  v.   Duke  of  Montrose  (1791),  4  T.  R.  248,  250;   2  R.  R. 
375.     This  was  an  action  by  an  otflcer  on  half-pay  against  the  Pay- 
masters-General of  the  army  to  recover  arrears  of  his  half-pay,  and  the 
only  question  was  whether  an  assignment   by   way   of  mortgage,   of 
which  the  defendants  had  due  notice,  justified  them  in  withholding  the 
money  from  the  plaintiff.     The  Court  was  clearly  of  opinion  that,  "  on 
principles  of  public  policy,  as  well  as  on  account  of  the  interest  of  the 
officers  themselves,  by  law  such  assignments  were  void."     The  mort- 
gagee was  not  party  to  this  action,  but  it  seems  to  have  been  thought 
that  he  might  obtain  equitable  relief,  and   he  accordingly  filed  a  bill 
in  the  Exchequer:  see  Stone   v.  Lidderdale  (1795),   2  Anstr.    533;  3 
R.  R.  622.     It  was  argued  that  the  assignment  was  good  in  equity,  as  a 
transfer  of  any  valuable  contingency  or  possibility,  if  made  for  good 
consideration,  is  affirmed  in  equity.     But  Macdonald,  C.B.,  in  a  con- 
sidered judgment,    declined  to  accept  this    view,  and    held   that  the 
plaintiff  was  not  entitled  to  any  relief  in  equity  in  respect  of  the  mort- 
gage.    In  short,  he  declined  to  affect  the  conscience  of  the  mortgagor 
in  respect  of  future  instalments  of  the  half-i)ay. 

In  my  opinion  it  is  impossible  to  disregard  this  "  alimentary  pro- 
vision "  on  the  ground  of  public  policy.     The  Scotch  court  would  de- 


SECT.  III.]  IX   RE   FITZGERALD.  367 

clare  that  the  interest  given  to  Sir  Gerald  cannot  be  assigned,  and 
would  disregard  the  claims  of  his  specific  mortgagees,  and  it  is  our 
duty  to  follow  and  adopt  the  Scotch  law :  Anstruther  v.  Adair,  2  M}'.  & 
K.  513;  39  R.  R.  263. 

But  then  it  was  urged  that  Sir  Gerald  could  bind,  and  did  bind,  the 
income,  as  and  when  it  reaches  the  hands  of  the  trustees  in  England, 
and  that,  whatever  might  be  the  rights  of  his  alimentar}'  creditors,  he 
himself  ought  not  to  be  allowed  to  claim  from  the  trustees  the  income 
which  he  has,  bj-  a  contract  binding  on  his  conscience,  charged  in  favor 
of  his  mortgagees.  I  doubt  whether  this  doctrine,  which  is  explained 
and  illustrated  bv  Lord  Macnaghten  in  Tailb}'  v.  Official  Receiver  (1888), 
13  App.  Cas.  523,  543,  has  any  application  to  a  vested  life  interest,  the 
assignment  of  which  takes  etfect,  if  at  all,  for  reasons  wholly 
independent  of  conscience.  An  assignment  of  a  vested  equitable  inter- 
est is  complete  and  operative,  though  voluntar}'.  It  in  no  way  depends 
upon  contract,  or  upon  anything  further  to  be  done  by  the  assignor. 
The  doctrine  applies  only  where  there  is  no  present  property-  capable  of 
assignment,  such  as  possibilities  and  expectancies.  Stone  v.  Lid- 
derdale  2  Anstr.  533 ;  3  R.  R.  622,  is  an  authority  against  the 
respondent's  contention,  and  I  know  of  no  authorit}'  in  its  favor. 
I  may  observe  that  the  defendant  Lidderdale  was  a  domiciled  English- 
man, whose  general  capacit}'  to  contract  was  undoubted.  Moreover, 
this  contention  is  reall}'  only  another  way  of  presenting  the  argument 
that  we  ought  to  disregard  the  Scotch  law.  If  the  life  interest  is  capa- 
ble of  assignment,  the  Court  would  grant  specific  performance  of  the 
contract,  and  would  aid  the  mortgagees  by  granting  an  injunction.  If, 
however,  as  in  Stone  v.  Lidderdale,  the  interest  is  non-assignable,  I 
think  it  follows  that  no  efl'ect  can  be  given  to  a  deed  purporting  to 
assign  by  way  of  anticipation.  The  decision  of  the  House  of  Lords  in 
Scott  V.  Allnutt,  2  Dow  &  C.  404,  which  was  relied  upon,  does  not 
really  touch  the  case. 

In  my  opinion,  the  order  of  Joyce,  J.,  was  wrong,  in  so  far  as  it 
declared  that  the  whole  of  the  income  during  the  life  of  Sir  Gerald  is 
payable  to  his  assignees  or  incumbrancers,  according  to  their  respec- 
tive priorities.  If  the  amount  of  the  income  were  very  large,  any  excess 
be^'ond  a  reasonable  amount  would,  according  to  the  Scotch  law,  pass 
to  the  assignees  or  incumbrancers,  but  I  do  not  understand  that  it  is 
suggested  that  there  is  an}-  excess  in  the  present  case.  I  think  the 
declaration  should  be  to  the  effect  that  Sir  Gerald  is  entitled  to  the 
whole  income  during  his  life,  free  from  the  claim  of  any  assignees  or 
incumbrancers,  but  without  prejudice  to  the  rights  (if  an}-)  of  his  ali- 
mentary creditors,  or  of  Miss  Fitzgerald,  and  without  prejudice  to  any 
prior  payment  in  respect  of  the  policy,  which  is  the  subject  of  another 
appeal  by  Miss  Fitzgerald.^ 

^  Vaughan  Williams,  L.  J.,  delivered  a  concurring  opinion;  Stirling,  L.  J., 
dissented. 


368  DE    NICOLS   V.    CURLIER.  ,  [CHAP.  VII. 

PURDOM  V.   PAVEY. 

Supreme  Court  of  Canada.     1896. 
[Reported  26  Canada,  412.] 

This  action  was  brought  by  Pavey  &  Co.,  creditors  of  one  Ebenezer 
Davidson.  The  said  Davidson  had  made  a  general  assignment  for  the 
benefit  of  his  creditors  ;  the  assets  were  insufficient  to  pay  the  debts, 
and  a  balance  was  due  these  plaintiffs.  Afterwards  Davidson  became 
entitled  to  land  in  Oregon  ;  he  conveyed  this  land  to  his  father,  who 
gave  to  Purdom  a  mortgage  on  the  land  equal  to  the  amount  of  the 
purchase-money  named  in  the  deed.  The  plaintiffs  alleged  that  Purdom 
took  said  mortgage  as  a  trustee  for  Davidson,  in  pursuance  of  a  fraudu- 
lent scheme  to  defraud  plaintiffs  and  other  creditors  of  Davidson  ;  and 
prayed  that  Purdom  should  be  declared  a  trustee  for  Davidson,  and 
that  the  money  due  on  the  mortgage  note  should  be  ordered  paid  into 
court  for  the  benefit  of  the  plaintiffs.  The  defendants  demurred.  From 
a  judgment  of  the  Court  of  Appeal  of  the  Province  of  Ontario,  over- 
ruling the  demurrer,  the  defendants  appealed  to  this  court.  ^ 

Strong,  C.  J.  So  far  as  the  lands  are  concerned,  the  vahdity  or 
invalidity  of  this  transaction  must  depend  on  the  lex  rei  sUcb,  —  the 
law  of  the  State  of  Oregon,  —  and  there  is  no  allegation  that  according 
to  that  law  a  constructive  trust  by  operation  of  law  would  arise  by  reason 
of  the  intent  to  hinder  and  delay  creditors,  or  that  even  an  express 
trust  must  necessarily  enure  to  the  benefit  of  or  be  available  for  the 
satisfaction  of  creditors.   .   .   . 

Then  whether  the  allegation  of  a  ''trust"  of  the  purchase-money  se- 
cured by  the  mortgage  which  the  plaintiffs  allege  is  to  be  considered  as 
an  averment  of  a  trust  arising  by  operation  of  law  consequent  upon  the 
illegality  of  the  transaction  or  as  an  allegation  of  a  conventional  express 
trust,  in  either  case  the  question  would  depend  on  the  lex  rei  sitce,  and 
from  this  alone  it  follows  that  the  forum  of  the  situs  is  the  proper  forum. 

In  this  last  aspect  of  the  case,  Be  Hawthorne,  Graham  v.  Massey, 
23  Ch.  Div.  743,  and  Norris  v.  Chambres,  29  Beav.  246,  appear  to  me 
to  be  authorities.  Appeal  allowed  with  costs. 


SECTION  IV. —  Marital  Property. 


DE  NICOLS   V.   CURLIER. 
House  of  Lords.     1899. 
[Reported  [1900]  Appeal  Cases,  21.] 
Earl  of  Halsbury,  L.  C     My  Lords,  it  is  not  necessarj'  to  state 
with  great  minuteness  how  the  question  in  the  present  appeal  arises. 
It  is  enough  to  say  that  two  French  subjt'cts  were  married  according  to 
the  laws  of  France  on  May  30,  1854.     No  marriage  contract  or  instru- 
ment in  writing  was  executed  by  either  of  the  parties.     Tlie  parties 
lived  together,  and  in  the  year  18G3  they  came  to  England,  and  in  the 
1  This  .short  statement  is  .substituted  for  that  of  the  Reporter.     Part  of  the  opiuion 
Diilv  is  iriven.  — Ed 


SECT.  IV.]  DE    NICOLS    V.   CURLIEK.  369 

year  1865  the  husband  obtained  the  status  of  a  naturalized  British 

The  whole  dispute  turns  on  the  question  ^hpthpi-  thp.  nhanCTed  domicU 
and  natural izn.ti on  o£  tlin  hupbaed-  affected  the  wife's  rights  so  as  to 
give  the  husband  the  power  to  dispose  of  all  H'f  nmvnblp.  prnpp.rtv  bv 
"winjnafP^rl  nf  l^PJntr  rf°HMr-tpr1  t.n  the  power  of  dlsposlng  of  oulj  onc- 
half  of  it,  as_be_j3xi£loubtodly  would  have  been  so  restricted  by  the 
Pr^njiT^j^^^j^M^r^"''''^  ^^"^  is  decisive  of  the  question.^ 
'^TfthiiTs  the  law  by  which  the  matter  is  to  be  governed,  it  cannot  be 
denied  that  the  appellant  here  must  succeed,  and  it  is  a  little  difficult 
to  understand  upon  what  principle  contracts  and  obligations  already 
existing  i/iter  ss  should  be  affected  by  an  act  of  one  of  the  contracting 
parties  over  which  the  other  party  to  the  contract  has  no  control  what- 
ever. And  indeed,  it  is  not  denied  that  if,  instead  of  the  law  creating 
these  obligations  upon  the  mere  performance  of  the  marriage,  the  par- 
ties had  themselves  by  written  instrument  recited  in  terms  the  very  con- 
tract the  law  makes  for  them,  in  that  case  the  change  of  domicil  could 
not  have  affected  such  written  contract.  X^"3  wholly  unable  to  under- 
stajid^why  the  mere  puttiog-iate^jpri ting  the  very  sfime  ron tract  wliit<h 
the  law  r.rpntPfljhpf3£f n  t.liPrQ  wJthout  any  writing  at  all  shoitld  hwe-  thf?. 
husband  from  altering  the  contract  i-plp.t,i(;)ps  bptween  hbnself  and  his 
wife  ;  when  if  the  law  creates  that  contract  relation,  then  the  husband 
is  not  barred  from  getting  rid  of  the  obligation  which  upon  his  marriage 
the  law  affixed  to  the  transaction. 

A  written  contract  is  after  all  only  the  evidence  of  what  the  parties 
have  agreed  to,  and  it  would  seem  to  be  of  no  superior  force  as  evi- 
dencing the  agreement  of  the  parties  than  a  known  consequence  of 
entering  into  the  married  status.  I  not  only  do  not  understand,  but  I 
should  decline  to  assent  to  any  such  view,  unless  I  am  compelled  by 
authoritative  decision  or  statute  to  adopt  a  view  which  to  my  mind  is 
so  entirely  unreasonable.  And  it  does  not  appear  to  me  that  any  court 
before  whom  this  question  has  come  would  disagree  with  me  as  to  its: 
being  unreasonable. 

The  Master  of  the  Rolls  himself  says  :  "  It  is  not  altogether  satisfac- 
tory to  hold  that  a  change  of  domicil  cannot  affect  an  express  contract 
embodying  the  law  of  the  matrimonial  domicil,  but  that  a  change  of 
domicil  does  affect  the  application  of  that  law  if  not  embodied  in  an 
express  contract." 

My  Lords,  I  should  think  that,  in  order  to  be  binding  on  your  Lord- 
ships, a  previous  decision  must  be  in  principle^  and,  as  applicable  to 
the  same  circumstances,  identical ;  and  it  appears  to  me  that  the  case 
by  which  the  Master  of  the  Rolls  thought  himself  bound  (Lashley  v. 
Hog,  4  Paton,  581)  is  quite  distinguishable  both  in  principle  and  in 
circumstances. 

To  omit  other  questions,  the  cardinal  distinction  between  the  French 
and  the  Scottish  law  is  not,  I  think,  without  an  important  bearing  upon 

1  The  Lord  Chancellor  here  stated  the  French  law.  —  Ed. 
24 


370  DE   NICOLS    V.    CURLIEE.  [cliAF.  VIL 

the  very  question  in  debate,  and  I  tliink  it  may  be  stated  sliortly  thus  : 
If  the  wife  by  the  nuin-iage  in  Scotland  acquired  no  proprietary  rights 
whatever,  but  only  what  is  called  a  hope  of  a  certain  distribution  upon 
the  husband's  death,  it  is  intelligible  that  that  right  of  distribution,  or 
by  whatever  name  it  is  called,  should  be  dependent  upon  the  husband's 
domicil,  as  following  the  ordinary  rule  that  the  law  of  a  person's  domi- 
cil  regulates  the  succession  of  his  movable  property.     But  if  by  the  mar- 
riao-e  the  wife  acquires  as  part  of  that  contract  relation  a  real  proprietary 
rio"ht,  it  would  be  quite  unintelligible  that  the  husband's  act  should  dis- 
pose of  what  was  not  his;  and  herein,  I  think,  is  to  be  found  the  key  to 
Lord  Eldon's  judgment.    He  says  (4  Paton,  617 ) :  "  The  true  point  seems 
to  be  this,  whether  there  is  anything  irrational  iu  saying  that  as  the  hus- 
band, during  the  whole  of  his  life,  has  the  absolute  disposition  over  the 
property,  that  as  to  him,  whom  the  policy  of  the  law  has  given  the  di- 
rection of  the  family  as  to  the  place  of  its  residence,  that  he  who  has 
therefore  this  species  of  command  over  his  own  actions,  and  over  the 
actions  and  property  which  is  his  own,  and  which  is  to  remain  his  own, 
or  to  become  that  of  his  family  according  to  his  will  —  why  should  it 
be  thought  an  unreasonable  thing,  that,  where  there  is  no  express  con- 
tract, the  implied  contract  shall  be  taken  to  be  that  the  wife  is  to  look 
to  the  law  of  the  country  where  the  husband  dies  for  the  right  she  is  to 
enjoy  in  case  the  husband  thinks  proper  to  die  intestate?" 

It  will  be  observed  that  the  whole  point  of  what  Lord  Eldon  argues 
is  that  the  whole  of  the  property,  apart  from  express  contract,  is  abso- 
lutely and  entirely  the  husband's,  and  that  as  by  law  he  can  dispose  of 
it  ashe  will,  it  is  not  unreasonable  that  he  should  be  at  liberty  to  do 
something  which  by  its  legal  effect  will  change  wliat  I  think  are  inac- 
curately described  as  the  rights  of  the  wife,  but  are  accurately  described 
as  what  would  have  been  the  rights  of  the  wife  if  no  change  had  taken 
place,  because  in  substance  she  has  until  the  husband's  death  no  rights 

at  all. 

Doubtless  it  is  true  that,  according  to  the  authorities  on  Scottish  law, 
the  right  of  the  wife  is  no  right  at  all  in  its  strict  sense.  When  siteak- 
ing  of°  the  jus  mariti  it  is  described  as  a  legal  assignation  to  the  hus- 
ba°id,  and  in  commenting  on  this  authority,  the  late  Mr.  Fraser,  while 
at  the  Scottish  Bar,  in  his  book  on  the  Law  of  Husband  and  Wife,  2d 
ed.  vol.  i.  p.  677,  says :  ''  At  a  very  early  period  of  our  law,  the  dis- 
tinction between  the  two  rights  was  recognized.  The  right  of  admin- 
istration was  regarded  as  being  nothing  more  than  its  name  imi)orts  — 
a  riglit  of  administering  the  property  of  the  spouses  ;  while  the  Jus 
mariti  was  sometliing  separate  and  superior,  its  purpose  being  to  trans- 
fer the  property  from  one  spouse  to  the  other.  The  distinction  is  set- 
tled and  taken  in  a  number  of  cases  ranging  from  an  early  i)eiiod  to 
the  present  time,  and  has  not  been  so  clearly  marked  in  some  nistitu- 
tional  works,  solely  from  the  desire  of  the  writers  to  reconcile  it  with 
the  notion  of  an  absolute  veritable  cunnvniio."  .  .  .  "The  distinction 
is  thus  stated  in  argument  in  the  Session  Papers  of  Gowau  v.  Pursell: 


SECT.  IV.]  DE   NICOLS   V.   CURLIER.  371 

ThQJus  mariti  over  the  movables  is  a  right  during  the  existence  of  the 
marriage  of  absolute  property.  The  husband  may  sell,  or  squander,  or 
wastefully  destroy  the  movables  that  fall  under  communion."  How 
different  the  position  of  the  wife  is  under  the  French  law  is  sufficiently 
indicated,  in  contrast  to  the  above  extract,  by  section  1443  of  Code  Civil, 
which  enacts  that :  "  1443.  A  separation  of  property  can  only  be  judi- 
cially sued  for  by  the  wife  whose  dowry  is  in  danger,  and  when  the  disorder 
of  the  husband's  affairs  is  such  that  there  is  reason  to  fear  that  his  prop- 
erty will  not  be  sufficient  to  satisfy  the  wife's  riglits  and  claims.  Any- 
voluntary  separation  is  void."  And  if  the  propositions  are  put  shortly 
—  that  the  wife  acquires  no  proprietary  rights  by  marriage  under  the 
Scotch  law  at  all,  but  under  the  French  law  acquires  a  real  proprietary 
right — the  distinction  between  the  two  systems  is  evident  enough.  The 
communio  bonorum  in  Scotland  is  a  mere  fiction.  In  France  it  is  a 
reality,  and  in  England,  as  the  Master  of  the  Rolls  says,  the  parties  to 
the  litigation  now  being  discussed,  Mr.  and  Mrs.  Hog,  were  both  Eng- 
lish, married  in  England,  where  her  unsettled  property,  existing  and 
after  acquired,  became  the  property  of  Mr.  Hog  by  the  mere  fact  of 
the  marriage,  and  gave  Mrs.  Hog  no  proprietary  right  whatever  to  the 
movable  property  in  question. 

Once  it  is  admitted  that  the  marriage  gives  a  proprietary  right  (and 
therein  is  the  importance  of  the  distinction  Lord  Eldon  took  between 
what  was  inaccurately  argued  in  that  case  as  a  proprietary  right  con- 
ferred by  the  fact  of  marriage  and  a  real  proprietary  right  conferred  by 
specific  contract),  the  anomaly  pointed  out  by  the  Master  of  the  Rolls  and 
sought  to  be  explained  becomes  at  once  intelligible.  It  is  only  material 
as  illustrating  what  was  the  prevailing  train  of  thought  in  the  minds 
of  Lord  Eldon  and  Lord  Rosslyn.  Both  of  them  speak  of  the  words 
"  implied  contract,"  by  which  I  presume  they  mean  implied  from  the 
relation  of  husband  and  wife,  and  not  unnaturally  they  deduce  the  con- 
clusion that  if  it  is  implied  from  that  relation  only  the  husband's 
change  of  domicil  may  bring  with  it  the  consequential  change  from 
such  relation. 

\Here,  however,  as  I  have  endeavored  to  point  out,  the  French  mar- 
riage confers  not  only  an  implied  but  an  actual  binding  partnership  pro- 
prietary relation  fixed  by  the  law  upon  the  persons  of  the  spouses,  the 
binding  nature  of  which,  it  appears  to  me,  no  act  of  either  of  the  parties 
contracting  marriage  can  affect  or  qualify. > 

I  can  only  account  for  the  absolutely  inaccurate  use  of  the  Scottish 
term  jus  relictm  as  arising  from  a  reference  to  a  dispute  that  appears 
to  have  existed  in  the  Scottish  authors  as  to  whether  those  rights 
flowed  from  the  communion,  whereas,  to  quote  again  from  Mr.  Eraser's 
book,  p.  671,  where  he  says :  "  It  has  been  found  in  accordance  with 
the  opinions  of  the  French  commentators,  of  Dirleton,  and  other  law- 
yers of  our  own  country,  that  the  jus  relictm  and  legitim  are  in  all 
respects  the  same  ;  that  they  are  mere  casual  contingent  rights  during 
the  subsistence  of  the  marriage,  existing  then  only  in  hope,  and  coming 


372  DE   NICOLS   V.   CURLIER.  [CHAP.  VII. 

into  proper  rights  merely  at  its  dissolution  ;  tliat  they  are  not  rights  of 
divisiou  of  a  fuud  ah-eady  held  in  common,  but  rights  of  debt  against 
the  husband's  executors,  constituting  the  widow  and  the  children  cred- 
itors, whose  right  comes  into  being  by  the  husband's  death,  and  second- 
ary creditors  too,  for  all  other  debts  must  be  paid  before  theirs." 

It  is,  therefore,  as  I  understand,  that  when  once  Lord  Eldou  came  to 
the  conclusion  that  the  husband  and  wife  had  become  Scottish  domiciled 
spouses,  the  property'  not  affected  by  a  previous  complete  and  irrevo- 
cable right  would  properly  be  distributed  according  to  Scottish  law. 

It  follows,  therefore,  if  I  am  right,  that  that  case  is  not  binding  on 
3'our  Lordships,  and  that  we  are  at  liberty  to  decide  the  question  now 
in  dispute,  in  accordance  with  reason  and  common  sense. 

I  therefore  move  your  Lordships  that  the  order  appealed  from  be 
reversed,  and  that  in  respect  of  costs,  as  I  understand  this  is  only- 
one  question  in  the  summons  which  comprehends  other  questions  also 
in  debate,  the  costs  of  this  appeal  should  be  costs  in  the  summons. 

Lord  Macnaghten.  My  Lords,  in  1854  Mr.  De  Nicols,  the  testator, 
and  the  appellant,  who  is  now  his  widow,  intermarried  in  Paris.  They 
were  both  French  by  birth  and  both  domiciled  at  the  time  in  France, 
They  married  without  a  contract  of  marriage,  and  consequently  under 
the  law  of  France  they  became  subject  to  the  system  of  community  of 
goods. 

In  1863  Mr.  and  Mrs.  De  Nicols  left  Paris  and  came  to  London. 
They  acquired  an  English  domicil,  and  in  1865  Mr.  De  Nicols  obtained 
a  certificate  of  naturaUzation  in  this  country.  From  that  time  forward 
their  residence  in  England  was  continuous.  Mr.  De  Nicols  became  a 
restaurant  proprietor  in  London.  He  was  successful  in  business,  and 
amassed  a  large  fortune,  consisting  of  both  movable  and  immovable 
property. 

Mr.  De  Nicols  died  in  February,  1897,  having  made  a  will  in  the 
English  form  and  language. 

The  question  for  your  Lordships'  consideration  is  whether  Mr.  and 
Mrs.  De  Nicols  continued  subject  to  the  sj'stem  of  community  of  goods 
after  they  became  domiciled  in  England.  On  the  one  hand  it  is  con- 
tended that  the  change  of  domicil  from  French  to  English  destroyed 
the  community  altogether,  and,  therefore,  that  the  testator's  will  op- 
erated upon  the  whole  of  the  property  vested  in  him  which,  but  for  that 
cbange,  would  have  been  common.  On  the  other  hand  it  is  said  that 
the  community  continued  notwithstanding  the  change  of  domicil,  and 
that  Mr.  De  Nicols  remained  bound  by  the  article  of  the  Code  Civil, 
Vwhich  provides  that  tlie  testamentary  donation  by  the  husband  cannot 
exceed  his  share  of  the  communit}'.^ 

If  the  case  were  not  embarrassed  by  tlic  judgment  of  this  House  in 
Lashley  /;.  Hog,  which  was  discussed  so  fully  at  the  bar,  it  would  not,  I 
think,  present  much  difficulty. 

Putting  aside  Lasliley  r.  Hog  for  the  moment,  the  only  question 
would  seem  to  be  what  was  the  effect  according  to  French  law  of  the 


SECT.  IV.]  DE   NICOLS    V.    CUKLIER.  373 

marriage  of  Mr.  and  Mrs.  De  Nicols  without  a  marriage  contract  ? 
Upon  tliat  point  there  cannot,  I  think,  be  any  room  for  doubt.  It  is 
proved  by  the  evidence  of  M.  Lax,  the  expert  in  French  law  called  on 
behalf  of  the  appellant,  that,  aciiordintr  to  thaJag  of  France,  a  husband 
and  wife  intermarrying  without  having  entprp.d  into  gn  intpnnptiq]  fonn- 
tract  inwrit.inff  n.rp.  planed  and  stand  bv  the  sole  fact  of  the  marriage 
precisely  in  the  same  position  in  all  respects  as  if  previously  to  their 
marriage  they  had  in  due  form  executed  a  written  rontrnct.  nnd  tliprehv 
adopted  as  spffiil  n.nd  Q-^py'^-ig  cnvpnnnts  all  and  everyone  of  the  proj^ 
visions  contained  in  articles  1401  to  1496  in  Title  V.  of  tITpTindp  Civile 
Teaded  ^'OfMarriage  Contracts  and  the  res£ective  rights  of  spouses^.' 
""  In  support  olTthis  conclusion,  M.  Lax  refers  to  the  relevant  articles 
Df  the  Code  and  to  a  decision  of  the  highest  authority  pronounced  by 
Ihe  Cour  de  Cassation  in  January,  1854.  The  case  as  reported  by  Sirey 
presents  the  argument  so  clearly  and  so  concisely  that  I  may  be  par- 
doned for  referring  to  it  more  in  detail.  The  summary  in  Sirey's 
Reports  is  as,  follows  :  (Tables  Generales  [Contrat  de  Mariage]  para- 
graphe  8.)  ("The  conjugal  association  as  to  property  once  formed  at 
the  time  of  the  marriage  by  the  operation  of  the  law  of  the  domicil  or 
nationality  of  the  husband  cannot  be  altered  later  on  either  by  a  change 
of  nationality  or  by  the  acquisition  of  a  new  personal  domicil  subse- 
quently to  the  marriage."  y  The  case  was  this :  An  Englishman  and  an 
EngUshwoman,  a  Mr.  and  Mrs.  Boyer,  were  married  in  England  with- 
out any  settlement.  Afterwards  they  went  to  France  and  jointly  ac- 
quired immovable  property  there.  The  husband  became  a  French  citizen. 
The  wife  died  first.  On  her  death  duty  was  demanded  and  paid  on  one- 
half  of  the  property  as  having  devolved  upon  her  children  as  her  next 
of  kin.  An  action  was  brought  for  the  return  of  the  duty.  The  tribu- 
nal of  Lille  ordered  repayment,  holding  that  "  the  matrimonial  compact 
in  respect  of  property  is  as  immutable  as  the  marriage  itself,  of  which 
it  is  an  accessory."  The  revenue  authorities  appealed.  The  Cour  de 
Cassation  aflSrmed  the  decision.  They  founded  their  judgment  upon 
their  view  of  English  law,  which  seems  right  enough,  and  upon  the  fol- 
lowing considerations  :  that  "  the  rule  of  the  marriage  of  the  spouses 
Boyer  has  followed  them  to  France  when  the}'  went  there  to  settle  and 
there  acquired  property,"  and  that  "  the  said  rule  has  the  same  force  as 
if  a  formal  contract  had  been  entered  into  between  the  said  spouses  for 
the  regulation  of  their  fortune." 

Although  this  reasoning  may  not  seem  quite  in  accordance  with  the 
opinion  which  Lord  Eldon  expressed  in  Lashley  v.  Hog,  as  to  the  effect 
of  an  English  marriage  without  a  settlement,  it  indicates,  I  think,  the 
view  which,  according  to  French  law,  would  be  taken  of  the  compact 
as  to  property  constituted  by  a  French  marriage  under  the  Code  Civil 
without  an  antenuptial  agreement. 

The  expert  who  was  called  on  behalf  of  the  executors  does  not 
attempt  to  contravene  this  conclusion  of  law.  He  endeavors  to  mini- 
mize its  effect  by  treating  it  as  a  self-evident  proposition  —  as  in  fact 


374 


HAREAL    V.    HARRAL. 


[chap.  vn. 


being  nothing  more  than  what  the  Code  declares.  He  adds,  however, 
that  in  his  opinion  the  effect  of  a  change  of  domicil  or  nationality  upon 
the  communit}'  sj'stem  was  never  considered  by  the  framers  of  the 
Code.  That  may  be  so.  Uutif  there  is  a  valid  compact  between 
spouses  .is  to  tlieir  proijertyj  whetEeyit  be  constituted^- the  law  of^ 
The  land  or  by  convention  between  the  parties,  itisdifficult  to  see  how 
t5at~TOmpact"T;gn  b^llulhiied  or  blotted  out^tHCTelv  bv~a  changi~of 
domicil. 


^  the  ul)lm:itions^of  ihemarriat^e  law,  under  which 

the_jiaJlies-^Teontracted  iiuUriiuDU}-.  e^[uivalent  according  to^p  lawTTf 
the  couji try  where  the  uiairiage  was  1 1  lej^rntpd  to  nn  express  cnntmpt, 
losetheij:Jbrce  and  -eflJeci  jyJLuiJuJlui.  ^lajliea  become_dormdUMJhT_another 
countrvl.    As  M.  Lax  points  out,  change  of  domicil  and  naturalization 


in  a  foreign  countr}'  are  not  among  the  events  specified  in  the  Code  as 
having  the  effect  of  dissolving  or  determining  the  communit}-.  Let  us 
suppose  a  case  the  converse  of  the  present  one.  Suppose  an  English- 
man and  an  Englishwoman,  having  married  in  England  without  a  set- 
tlement, go  to  France  and  become  domiciled  there.  Suppose  that  at 
the  time  of  the  acquisition  of  the  French  domicil  the  husband  has 
£10,000  of  his  own.  Wh}'  should  his  ownership  of  that  sum  be  im- 
paired or  qualified  because  he  settles  in  France  ?  There  is  nothing  to 
be  found  in  French  law,  nothing  in  the  Code  Civil,  to  effect  this  altera- 
tion in  his  rights.  Community  of  goods  in  France  is  constituted  by  a 
marriage  in  France  according  to  French  law,  not  by  married  people 
coming  to  France  and  settling  there.  And  the  communit}'  must  com- 
mence from  the  day  of  the  marriage.  It  cannot  commence  from  any 
other  time.  It  appears  to  me,  therefore,  that  the  proposition  for  which 
the  executors  contend  cannot  be  supported  on  principle.  That,  I  think, 
was  the  view  of  the  Court  of  Appeal.  But  they  considered  that  the 
judgment  of  Lord  Eldon  in  Lashley  v.  Hog,  compelled  them  to  decide 
in  favor  of  the  executors.^ 

It  appears  to  me  that  the  case  is  not  governed  by  the  decision  in 
Lashley  v.  Hog,  and  I  think  the  appeal  ought  to  be  allowed. 

LoKD  Morris,  Lord  Shand,  and  Lord  Brampton  concurred. 


HARRAL  V.  HARRAL. 
Court  of  Eurors  and  Appeals,  New  Jersey.     1884. 
{Reported  39  New  Jersey  Equity,  279.] 

Frederick  F.  Harral  was  born  in  Connecticut  in  1842.    He  gradu- 
ated at  Yale  College  in  1863,  and  at  the  College  of  Physicians  and 

1  The  learned  Lord  here  stated  and  commented  upon  the  case  of  Lashlej  v.  Hog.  • 
—Ed. 


SECT.  IV.]  HAKRAL   V.   HARRAL.  >  375 

Suro-eons  in  New  York  City,  in  1868.  He  was  married  on  the  20th  of 
February,  1877,  before  the  deputy  mayor,  in  the  city  of  Paris,  to 
Clarice  Marie  Le  Gars,  a  Frenchwoman.  In  May,  1878,  he  returned 
to  this  country,  and  died  at  Kirlibride's  hospital  for  the  insane,  in 
Philadelphia,  July  5,  1881. 

On  the  9th  of  July,  1869,  and  before  his  departure  for  Europe,  the 
decedent  duly  made  and  executed  a  will,  devising  and  bequeathing  all 
his  property,  real  and  personal,  to  his  brother  and  sisters,  and  appoint- 
ing William  Creighton  Peet  and  Hamilton  Wallis  executors.  This  will 
was  admitted  to  probate  in  the  prerogative  court  of  this  State  on  the 
31st  of  July,  1882. 

The  widow  filed  this  bill  in  the  Court  of  Chancery  of  this  State,  to 
which  the  legatees  under  the  will  of  her  husband  and  the  executors  are 
parties. 

The  prayer  of  the  bill  is  that  the  personal  estate  of  the  decedent,  so 
far  as  concerns  the  complainant's  interest  therein,  should  be  distributed 
in  accordance  with  the  laws  of  France. 

On  final  hearing,  on  bill  answer  and  depositions,  the  chancellor 
made  a  decree  in  accordance  with  the  prayer  of  the  bill.  From  that 
decree  the  defendants  appealed. 

Depue,  J.  The  law  of  France  in  relation  to  the  rights  of  husband 
and  wife  in  the  property  of  either  spouse  is  established  by  tlie  Code 
Napoleon.  Before  the  French  Revolution,  the  northern  provinces  of 
France  were  under  the  customary  law,  and  the  community  of  property 
governed  the  nuptial  contract ;  in  the  southern  provinces  the  Roman 
law  prevailed,  and  the  contract  was  governed  by  the  dotal  system. 
The  Code  Napoleon  left  the  parties  to  elect  the  law  by  which  the  mar- 
riage should  be  governed  ;  and  if  no  election  was  made,  the  commun- 
ity system  was  to  prevail.  2  Kent,  187,  note.  Section  1391  of  the 
Code  provides  that  the  parties  may  declare  in  a  general  manner  that 
thev  intend  to  marry  either  under  the  law  of  community  or  under  the 
law'of  dowrv.  The  community  is  either  legal  or  conventional.  Legal 
community  is  established  either  by  a  simple  declaration  that  the  parties 
marry  under  the  law  of  community,  or  by  a  marriage  without  any  con- 
tract on  the  subject.  Sections  1400,  1497.  There  was  no  marriage 
contract  between  these  parties  with  respect  to  property  ;  and  if  dis- 
position of  the  personal  estate  in  question  is  to  be  made  by  the  French 
law,  it  must  be  disposed  of  as  community  property. 

Community  is  divided  by  the  Code  into  two  classes — active  and 
passive.  The  former  relates  to  the  disposition  of  property  ;  the  latter, 
to  liability  for  debts.  The  property  which  is  comprised  in  the  com- 
munity consists  of  (1)  All  the  movable  property  which  the  married 
parties  possessed  on  the  day  of  the  celebration  of  the  marriage,  and  all 
movable  property  which  falls  to  them  during  the  marriage,  by  succes- 
sion, or  even  by  donation,  if  the  donor  has  not  expressed  himself  to 
the  contrary ;  (2)  All  the  fruits,  revenues,  interest,  and  arrears  of  what 
nature  soever  they  may  be,  fallen  due  or  received  during  the  marriage, 


376  HAERAL   V.    HARKAL.  [CHAP,   VII. 

and  arising  from  property  which  belonged  to  the  married  persons  at 
the  time  of  the  celebration  of  the  marriage,  or  from  such  as  has  fallen 
to  them  during  the  marriage  by  any  title  whatsoever ;  and  (3)  All  im- 
movable property  acquired  during  the  marriage.  Section  1401.  This 
communit}',  whether  it  be  conventional  or  legal,  commences  from  the 
day  of  the  marriage  contracted  before  the  officer  of  the  civil  power. 
Section  1399.  During  the  coverture  the  husband  has  the  custody, 
control,  management,  and  power  of  disposition  (under  some  restric- 
tions) of  the  community  property  (sections  1421,  1422)  ;  and  he  may 
make  a  testamentary  disposition  of  his  portion  of  the  community  prop- 
erty, but  of  no  more.  Section  1423.  After  the  death  of  the  husband 
the  wife  may  accept  or  renounce  the  communit}-.  Section  1453.  If 
she  accept  it,  her  share  —  that  is,  the  one-half  part  of  the  community 
property  —  is  given  to  her,  subject,  in  the  partition,  to  certain  specified 
deductions  and  allowances  by  way  of  compensation.  Sections  1467, 
1480. 

T^he  complainant,  in  her  bill,  charges  that  the  legal  domicil  of  tjie 
decedent,  at  the  time  of  his  death,  was  in  France,  and  insists  that 
^om  Ihe-time  of  the  celebration  of  her  marriage  with  the  testator,  by 
foi-ce  and  operation  of  the  laws  of  France,_a  legal  community  was 
established  between  her  and  her  husband  as  to  alljhe^personal  or  mov- 
able property  possessed  or_Q»ae4-by  either  of  ihem  during  the  mar- 
nage,  and  in  all  the  fruits,  revenues^  interest,  and  incomethereof ;  and 
tnat~upon  the  death  of  the  testator  she  was  entitled  to  have  alKfreceive, 
alSsolutely,  for  her  own  use  and  benefit,  the  one-half  part  of  all  such 
property  so  held  in  community  b_el3ye£a  -heraelf  Jtnd  her  husband,  and 
that  it  was  not  in  the  po^er  of  her  hnshnnd  to  dispose  of^thi?JL-^hnrft 
OT  "ttiterest  m  said  pronpTty,  whinhj  by  the-  laws,jifJFrance,  belonged 


To  her/ 

TEe  defendants,  in  their  answer,  admit  that  the  testator  was  married 
to  the  complainant  on  the  20th  of  February,  1877,  at  Paris  ;  but  they 
say  that  the  marriage  was  void  for  the  reason  tliat  the  testator  at  that 
time  was  of  non-sane  mind,  and  incompetent  to  enter  into  a  contract  of 
mari'iage.  The}'  admit  that  the  testator  lived  in  Paris  for  five  years 
before  his  marriage,  but  deny  that  his  legal  domicil  was,  at  the  time  of 
his  marriage,  or  at  any  time,  in  France,  and  insist  that  distribution  of 
his  personal  estate  should  be  made  under  the  laws  of  New  Jersey, 
The\'  also  say  that  by  the  law  of  France  no  man  can  become  domiciled 
in  France  without  he  shall  have  first  applied  to  the  French  government 
for  permission  to  do  so,  and  obtained  an  express  autliorizatiou  from 
the  government  to  establish  such  domicil,  and  that  the  testator  never 
obtained  an  authorization  to  establish  his  domicil  in  France,  and  never 
became  domiciled  there  by  the  laws  of  that  countr}'. 

The  chancellor,  in  his  opinion,  considered  the  evidence  on  the  sub- 
ject of  the  testator's  mental  condition  at  the  time  of  his  marriage,  and 
reached  the  conclusion  that  the  testator  was  not  at  that  time  mentally 
incapacitated  to  contract  marriage  or  to  change  or  establish  his  domi- 


SECT.  IV.] 


HARRAL    V.    HARRAL. 


377 


cil.  The  evidence  shows  that  the  decedent,  for  some  time,  had  been 
addicted  to  intemperance,  and  that  his  phjsical  and  mental  vigor 
had  been  impaired  by  indulgence  in  drink ;  but  it  falls  short  of  proof 
that,  at  the  time  of  his  marriage,  his  mental  faculties  had  become  so 
impaired  as  to  incapacitate  him  from  entering  into  a  contract  of  mar- 
riage, or  from  deciding  upon  the  place  of  his  domicil.  The  answer 
contains  no  allegation  of  fraud  or  imposition  upon  the  decedent  in 
procuring  the  marriage.  The  case  turns  whoU}'  upon  the  applicability 
of  the  community  law  to  the  testator's  personal  estate  in  the  hands  of 
his  executors. 

When  the  testator  went  abroad  in  1869,  his  property  consisted  of 
personal  estate,  and  a  house  and  lot  in  Bridgeport,  Connecticut.  The 
personal  estate  he  left  in  charge  of  Mr.  Wallis,  to  be  invested  and 
cared  for,  and  it  remained  in  charge  of  the  latter  during  the  lifetime  of 
the  decedent.  This  personal  estate,  amounting  to  about  $50,000,  at 
the  testator's  death  came  to  the  hands  of  the  executors.  This  contro- 
versyjielates  wholly  to  the  pi 


rsonal  estate.  .  .  . 
The  complainant's  counsel  contended  that  inasmuch  as  the  marriage 
was  celebrated  in  France,  the  wife,  immediately  on  her  consummation 
of  the  marriage,  acquired  a  vested  right  in  her  husband's  property, 
independent  of  any  question  of  domicil,  and  that  her  right  in  the  per- 
sonal proi)erty  of  the  husband  was  a  jus  acquired  by  the  marriage  by 
virtue  of  the  French  law,  which  could  not  be  invalidated  by  any  ex- 
traneous circumstances.  This  view  has  had  some  support  in  the  opin- 
ions of  writers  on  international  law,  but  is  contrary  to  the  course  of  de- 
cision in  the  courts  of  this  countrj-,  and,  I  may  add,  to  the  later  decisions 
of  the  courts  elsewhere.  The  doctrine  generally  adopted  and  supported 
by  reason  and  public  policy  is,  that  a  marriage  celebrated  according  to 
rites  and  ceremonies  recognized  by  the  laws  of  the  country  where  the 
marriage  takes  place,  is  valid  everywhere  ;  and,  as  a  general  rule  (not 
without  exceptions),  by  that  law  the  capacity  of  the  parties  to  contract 
a  marriage  is  determined.  Whart.  on  Confl.  of  Laws,  §§  161,  162, 
164;  Story  on  Confl.  of  Laws,  §§  113,  113  a,  114,  123  b,  124,  124  a; 
Bish.  on  Marr.  and  Div.  §§  357,  359,  363,  370;  Moore  y.  Hegeman,  92 
N.  Y.  521.  But  with  respect_to  the  propertyjjglxts  of  husljand-ojuggjija 
in  the  personarp!T?peHf]oFeitbfir,-dmi^f^^  the  marmgej^iatioB, 
the  place"~wBer£_t"he_maj:mg&o;ms--cej£brajedJ^^ 
rights  depend  on  what  is  knownjnJawLSS  thaJiia^moftt^  Le 

BretoittinSio'ucIIetTTTilart.  (La.)  60,  81 ;  Ford  v.  Ford,  2  Mart.  (n.  s.) 
574  ;  Allen  v.  Allen,  6  Rob.  (La.)  104 ;  Kneeland  v.  Ensley,  Meigs 
(Tenn.)  620  ;  Glenn  v.  Glenn,  47  Ala.  204  ;  Mason  v.  Homer,  105 
Mass.  116  ;  Story  on  Confl.  of  Laws,  §§  186,  193  ;  2  Pars,  on  Cont.  590. 
Mr.  Wharton  says  that  the  place  of  the  celebration  is  not  necessarily 
the  place  of  the  performance  of  the  marriage,  which,  he  says,  the  later 
jurists  have  agreed  is  its  true  legal  site,  and_that  this  place  of  perform^ 
ance  is  the  matrimonial  domicil  to  which  the  husband  and  wife  proi^osa 

^  Here  follows  a  discussion  on  domicil,  for  which  see  ante,  Vol.  I.  p.  1 95.  —  Ed. 


378  HARRAL    V.    HARRAL.  [CHAP.  VIl 

ta-Fe-paii;^^  Whart.  on  Confl.  of  Laws,  §  192.  On  the  marriage,  the 
legal  presumption  is  that  the  wife  takes  the  domicil  of  her  luisband, 
and  her  rights  are  subject  to  the  law  of  his  domicil ;  but  that  presump- 
tion is  overcome,  and  the  legal  inference  is  superseded  when,  on  the 
marriage,  the  parties  adopt  a  place  for  their  matrimonial  domicil  —  in 
which  event  the  matrimonial  domicil  will  control,  and  will  regulate  the 
propert}'  rights  of  the  parties  in  movables. 

The  authorities  are  quite  generally  in  accord  in  selecting  the  matrimo- 
nial domidL-asJ}ie~placJe^Llch  sliall  furnisti-theJiLw  regulating  the  in- 

^teresLs_QfJiii§bancl  and  wife-jn-the  movable  property  of  either,  which  was 
irL£Sse  when  the  marriage  took  plafig.  Perplexing  questions  sometiuies 
arise  as  to  what  place  shall  be  deemed  the  true  matrimonial  domicil  in 
the  sense  of  this  rule.  Mr.  Justice  Story  supposes  a  case  where  neither 
of  the  parties  has  a  domicil  in  the  place  where  the  marriage  was  cele- 
brated, and  the  parties  were  there  in  transitu,  or  during  a  temporary 
residence,  or  on  a  journey  made  for  that  sole  purpose  animo  rever- 
tendi^  and  says  that  the  principle  maintained  b}'  foreign  jurists  in  such 
cases  would  be  that  the  actual  or  intended  domicil  of  the  parties  would 
be  deemed  to  be  the  true  matrimonial  domicil ;  or,  to  express  the  doc- 
trine in  a  more  general  form,  that  the  law  of  the  place  where,  at  the 
time  of  the  marriage,  the  parties  intended  to  fix  their  domicil  would 
govern  all  the  rights  resulting  from  the  marriage.  He  also  supposes 
the  case  of  a  man  domiciled  in  one  State  marrying  a  lady  domiciled  in 
another  State,  and  says  that  foreign  jurists  would  hold  that  the  matri- 
monial domicil  would  be  the  domicil  of  the  husband  if  it  was  the  inten- 
tion of  the  parties  to  fix  their  residence  there,  or  the  domicil  of  the 
wife  if  it  was  tlieir  intention  to  fix  their  residence  there,  or  in  a  differ- 
ent place  from  the  domicil  of  either  the  husband  or  wife  if  they  intended 
to  establish  their  matrimonial  domicil  in  some  other  place.  He  then 
refers  to  the  decisions  of  the  courts  of  Louisiana,  adopting  the  same 
principle,  and  concludes  that,  "  under  these  circumstances,  where  there 
is  such  a  general  consent  of  foreign  jurists  to  the  doctrine  thus  recog- 
nized in  America,  it  is  not,  perhaps,  too  much  to  affirm  that  a  contrary 
doctrine  will  scarcel}'  hereafter  be  established  ;  for,  in  England  as  well 
as  in  America,  in  the  interpretation  of  other  contracts,  the  laws  of  the 
place  where  they  are  to  be  performed  has  been  held  to  govern.  Treated, 
therefore,  as  a  matter  of  tacit  matrimonial  contract  (if  it  can  be  so 
treated),  there  is  the  rule  of  analogy  to  govern  it ;  and  treated  as  a 
matter  to  be  governed  by  the  municipal  law  to  which  the  parties  were, 
or  meant  to  be,  subjected  b}-  their  future  domicil,  the  doctrine  seems 
equally  capable  of  a  solid  vindication."  Story's  Confl.  of  Laws,  §§  191- 
199.  All  per[)lexity  on  this  subject  is  removed  where,  as  in  this  case, 
the  place  where  the  marriage  is  celebrated,  the  domicil  of  tlic  wife,  and 
the  establishmeni  of  a  home  after  the  marriage,  concur.     The  i^lace  of 

^^ntract  and  the  place  of  performance  being  the  same,  on  legal  anal- 
"^gies  there  would  seem  to  be  no  doubt  tliat  that  place  would  be  the 
Tnatrimoniai  domicil,  and  that  the  incidents  of  the  marriage  would  be 
determinen  by  theiaw  of  that  place.  ~~  ~' 


SECT.  IV.]  HARKAL   V.   HAERAL.  \/'  379 


Nor  can  that  question,  which  has  given  rise  to  great  diversity  of 
opinion  where  new  property  has  been  acquired  after  the  marriage,  and 
in  a  new  domicil,  arise  in  this  case,  for  the  propert}-  to  which  this  con- 
troversy relates  was  in  esse  at  the  time  of  the  marriage,  and  the  matri- 
monial domicil  then  established  continued  until  the  husband's  death ; 
and  it  is  universally  allowed  that,  when  a  marriage  takes  place  without 
settlement,  the  mutual  rights  of  the  husband  and  wife  in  each  other's 
movable  property  are  to  be  regulated  by  the  law  of  the  matrimonial 
domicil,  so  long  as  that  remains  unchanged.  Westlake's  Int.  Law, 
§  366. 

The  French  law  recognizes  a  conjugal  domicil  analogous  to  what  is 
known  in  our  law  as  a  matrimonial  domicile  and  is  distinguished  from 
that  domicil  which  is  required  for  the  purpose  of  contracting  a  lawful 
marriage  ;  and  the  law  of  that  country,  with  respect  to  the  effect  of  the 
conjugal  domicil  upon  the  rights  of  husband  and  wife  in  the  movable 
property  of  either  spouse,  is  in  accordance  with  the  views  above  ex- 
pressed. George  Merrell,  a  witness  called  by  the  defendants,  who  is 
not  an  attorney  or  avocat  in  the  French  courts,  being  a  foreigner  who 
studied  law  in  New  York  City,  said  that  a  foreigner  cannot  acquire  a 
domicil  in  France  without  complying  with  Article  13  of  the  Code, 
except  it  be  a  matrimonial  domicil,  which  he  defines  to  be  the  resi- 
dence necessary  to  confer  jurisdiction  on  the  magistrate  for  the  celebra- 
tion of  the  marriage  ;  and  that  in  the  case  of  an  American  citizen 
establishing  his  residence  in  France,  with  intention  of  making  that  his 
permanent  home,  marrying  and  living  there,  not  having  received  the 
government  authorization,  according  to  the  Code,  his  personal  prop- 
erty would  be  distributed  according  to  the  American  law.  On  the 
other  hand,  M.  Goiraud,  a  French  lawyer  called  b}-  the  complainant, 
testified  that  the  domicil  necessary  for  a  foreigner  to  contract  a  legal 
marriage  required  only  a  residence,  in  fact,  for  six  months,  and  that 
the  domicil  which  was  to  govern  the  marriage  relations  of  the  parties 
would  be  the  conjugal  domicil,  which  he  defined  to  be  the  domicil 
which  had  been  chosen  by  the  parties,  either  at  the  time  of  the  mar- 
riage or  after  the  marriage,  in  order  to  be  finally  settled.  M.  Clunet, 
avocat  of  the  court  of  Paris,  called  by  the  complainant,  testified  that 
French  jurisprudence,  in  order  to  establish  the  marriage  relation  of  the 
parties  married  without  a  contract,  takes,  as  a  principle,  their  supposed 
intention,  and  finds  the  expression  of  that  intention  in  what  is  called 
the  conjugal  domicil,  or,  in  other  words,  the  place  where,  after  the 
marriage,  the  parties  establish  themselves.  Both  these  witnesses  agree 
that  government  authorization  is  not  required  for  the  establishment  of 
a  conjugal  domicil  in  France,  which,  when  the  marriage  is  celebrated 
in  France  without  a  contract,  will  make  the  propert}-  of  a  foreign-born 
husband  subject  to  the  community  law. 

The  decisions  of  the  French  courts  sustain  the  opinions  given  by 
M.  Goiraud  and  M.  Clunet.  In  Breul's  Case,  Sirey  (1854),  2,105, 
translated  in  4  PhiUim.  Int.  Law,  226,  and  more  fuUv  in  Cole  on  Domi- 


380  HAKRAL   V.    HAKKAL.  [CHAP.  \il 

cil,  45,  47,  Breul  was  a  Hanoverian  ;  he  married  a  Frencliwoman  in 
France,  and  died  there  ;  at  the  time  of  his  marriage,  and  at  his  death, 
he  was  domiciled  in  France,  but  had  not  obtained  a  governmental 
authorization  for  that  purpose.  On  appeal,  the  question  was  whether 
there  was  a  community  of  goods  between  husband  and  wife.  The 
court  held  that  there  was,  and  that  foreigners  were  capable  of  entering 
into  all  contracts  depending  on  the  law  of  nations,  and  could,  when 
they  marry  in  France,  accept  tacitlj-  the  rule  of  community,  established 
by  law,  in  the  same  way  as  they  might  have  made  that  rule  the  subject 
of  express  stipulation  in  a  formal  contract ;  that,  to  make  this  princi- 
ple apply  to  foreigners,  it  was  not  enough  that  the  marriage  was  cele- 
brated in  France  ;  but  that  it  was  also  necessary  that  the  intention  of 
the  contracting  parties  to  adopt  the  community  sliould  be  manifested 
hy  atBrmative  acts;  that  the  establishment  of  a  domicil  in  France  had 
always  been  regarded  as  the  most  positive  manifestation  of  such  inten- 
tion ;  that  the  domicil  ought  to  have  an  importance  to  distinguish  it 
from  simple  residence,  but  it  was  not  necessary  that  it  should  have 
been  authorized  by  the  government  under  Article  13,  for  the  reason 
that  the  object  of  this  authorization  was  to  confer  on  the  foreigner  all 
the  civil  rights  of  native-born  Frenchmen,  and  that  these  rights  were 
not  necessar}-  in  a  foreigner  in  order  to  enable  him  to  enter  into  matri- 
monial conventions,  which  are  ptTfel}'  of  the  jus  gentium. 

In  Lloyd  v.  Lloyd,  Sirey  (1849),  2,  220;  in  Cole  on  Domicil,  37,  and 
translated  in  a  note  to  Whicker  v.  Hume,  13  Beav.  401,  James  Lloyd, 
a  foreigner,  whose  birthplace  was  unknown,  and  who  was,  by  presump- 
tion and  residence,  an  Englishman,  came  to  France,  and  established 
himself  there  permanently.  In  1836  he  married,  at  Paris,  a  French- 
woman, without  a  marriage  settlement.  He  had  three  children  by  the 
wife  before  marriage,  and  tln-ee  afterwards.  He  continued  his  resi- 
dence, and  died  in  Paris,  leaving  his  wife  and  the  six  children  surviv- 
ing him.  The  widow  claimed,  before  the  French  court,  that  portion  of 
the  property  which  would  belong  to  her  bj'  the  French  law,  if  she  and 
her  husband  were  married  under  the  regime  of  the  comniunaute  des 
biens.  Her  right  depended  on  whether,  at  the  time  of  the  marriage, 
the  decedent  had  a  legal  domicil  in  France.  He  never  had  applied  for 
or  obtained  an  authorization  under  Article  13  of  the  Code.  The  Tribu- 
nal of  the  Seine  decided  against  her  claim,  but  the  decree  was  reversed 
b}'  the  Court  of  Appeal,  and  the  claim  of  the  widow  sustained.  The 
court  said  that  "it  is  fruitless  to  contend  that  the  domicil  of  James 
Lloyd,  in  France,  was  not  accompanied  by  the  authorization  of  the 
government,  required  by  Article  13,  and  therefore  it  cannot  be  taken 
into  consideration  as  regulating  the  conjugal  domicil,  for  it  is  a  fixed 
princii)le  of  law,  as  well  before  as  since  the  Code,  that  a  foreigner, 
even  when  he  preserves  that  quality,  could  acquire  a  domicil  in 
France;  that  Article  13  of  the  Code  did  not  intend  to  change  this 
state  of  things  ;  that  it  is  only  when  a  foreigner  wishes  to  possess  such 
a  domicil  in  France,  as  will  confer  upon  him  all  civil  rights,  that  the 


SECT,   IV.]  HARRAL    V.    HARRAL.  381 

authorization  of  government  is  required  ;  that  in  the  present  case  it  is 
not  a  question  as  to  a  civil  right,  exclusivel}-  appertaining  to  a  French 
citizen  ;  that  the  tacit  agreement  as  to  the  community  of  goods,  result- 
ing from  submission  to  Articles  1393,  1399,  1340,  and  the  succeeding 
articles,  was  purely  derived  from  the  law  of  nations." 

In  Fraix's  Case,  Fraix  was  a  Savoyard,  and  settled  in  Paris,  where 
he  married  his  second  wife,  a  Frenchwoman.  The  question  was 
whether  he  married  under  the  French  communaute  cles  Hens.  The 
court  held  that  although  he  had  not  been  authorized  by  the  government 
to  establish  his  domicil  in  France,  a  domicil  was  not  necessary  to 
make  the  communaxite  applicable,  which  is  presumed  to  have  been  the 
intention  of  the  parties  when  they  fixed  themselves  in  France.  4  Phil- 
lim.  Int.  Law,  231. 

In  Ghisla's  Case,  decided  in  1878,  Ghisla  was  a  Swiss  hy  birth.  He 
married  a  Frenchwoman  in  France,  and  before  and  after  his  marriage 
had  his  domicil  in  Marseilles,  and  in  that  place  died.  His  widow 
claimed  the  benefit  of  the  community  law,  and  it  was  adjudged  to  her 
by  the  court  of  Aix,  the  ground  of  the  decision  being  that,  where  one 
of  the  married  couple  is  French,  and  the  other  a  foreigner,  they  are,  in 
the  absence  of  a  contract,  governed  by  the  law  of  the  conjugal  domicil ; 
that  the  intention  of  the  parties  is  to  be  considered  before  their  nation- 
alit}',  and  that  to  the  fixing  of  the  conjugal  domicil,  government  author- 
ization was  not  required,  for  whatever  appertains  to  the  marriage 
belongs  rather  to  the  jus  gentium  than  to  the  civil  law,  properh'  speak- 
ing. Jour.  Int.  Law,  1878,  610.  In  Dages  v.  Laborde,  it  was  held 
that  the  legislation  applicable  to  the  civil  interests  of  a  marriage  was 
that  of  the  place  where  the  married  couple  established  their  domicil 
immediately  after  the  marriage,  and  where  it  appeared  that  it  was  their 
intention  to  fix  the  principal  place  of  their  business,  and  to  raise  their 
family,  and  that  this  domicil  was  denominated  their  matrimonial  domi* 
cil.  Court  of  Pau,  1835,  affirmed  in  the  Court  of  Cassation,  December, 
1836,  Journal  du  Palais,  1837,  1,  537. 

Giovanetti  v.  Orsini,  Sirey  (1855),  699,  is  the  converse  of  the  cases 
cited.  In  that  case  a  Frenchman,  while  domiciled  in  Tuscany,  married 
an  Italian  woman  in  Florence.  They  afterwards  removed  to  France. 
On  her  death,  the  question  arose  in  France  as  to  the  matrimonial  regime 
governing  the  estate  of  the  deceased  wife.  There  had  been  an  agree- 
ment, subsequent  to  marriage,  with  respect  to  property,  not  valid 
under  the  French  law.  The  court  held  that  the  marriage  having  been 
contracted  at  Florence,  and  the  parties  having,  at  the  epoch  of  their 
marriage,  fixed  their  matrimonial  domicil  in  Tuscany,  the  marriage 
was  necessarily  under  the  influence  of  the  Roman  law,  which  governed 
such  matters  in  Tuscany,  according  to  which,  agreements  subsequent 
to  marriage  were  authorized  and  valid.     Cole  on  Domicil,  41. 

Morand  v.  Commune  de  Mezere,  Sirey  (1873),  pt.  II.,  148,  much 
relied  on  b}'  the  defendants,  is  not  in  jjoint.  The  parties  were  married 
iu  Sardinia,  and  then  removed  to  France.     The  husband  settled  in 


382  FRIERSON    V.    WILLIAMS.  [CHAP.  VII. 

Paris,  and  had  his  principal  establishment  there,  but  did  not  obtain 
authorization  from  the  government.  His  daughter  was  born  in  France. 
He  died  in  1855,  and  his  widow  in  1867,  making  the  commune  her 
residuary  legatee.  The  court  held  that  Morand  was  a  foreigner,  and 
so  were  his  wife  and  daughter,  and  therefore  the  laws  of  P'rance  did 
not  govern  the  succession.  The  effect  of  a  French  marriage,  followed 
by  a  conjugal  doraicil  in  France,  was  in  no  wise  involved. 

I  think  it  is  clearly  shown,  not  only  by  the  testimony  of  the  French 
lawyers,  who  were  witnesses  in  this  case,  but  also  by  the  F^rench  deci- 
sions, that  it  is  the  law  of  that  country  that  the  marriage  of  a  foreigner 
in  France,  without  any  contract,  followed  by  a  conjugal  domicil  in 
France,  will  subject  the  property  of  the  married  persons  to  the  com- 
munity law,  and  that  a  government  authorization  under  Article  13  of 
the  Code  is  not  necessary  to  the  establishment  of  such  a  domicil. 

The  decree  of  the  chancellor  should  be  affirmed. 

Decree  unanimously  affirmedo 


FRIERSON   V.  WILLIAMS. 

Supreme  Court,  Mississippi.     1879* 

[Reported  57  Mississippi,  451.] 

George,  C.  J.'^  The  plaintilT  in  error  filed  his  bill  in  the  Chancery 
Court  of  Coahoma  County  against  John  Williams  and  his  wife  for  the 
purpose  of  collecting  out  of  the  separate  estate  of  Mrs.  Williams  a 
note  for  six  thousand  and  fifty  dollars,  made  by  Williams  and  wife, 
in  February',  1873,  payable  to  the  order  of  Williams,  the  husband,  and 
by  him  indorsed  to  the  plaintiff  in  error  for  money  then  advanced  by 
the  latter  to  said  Williams.  The  note  was  made  at  New  Orleans,  in 
the  State  of  Louisiana,  where  Williams  and  his  wife  reside.  The 
property  sought  to  be  charged  with  the  debt  is  land  situated  in  Coa- 
homa County,  and  is  the  separate  estate  of  Mrs.  Williams,  under  a 
devise  made  to  her  by  her  sister,  Mrs.  McGuire,  who  died  In  1863. 
By  her  will  she  provided  as  follows:  "My  whole  estate,  real  and 
personal,  sliall  go  to  my  sisters,  Pollen  Mayes,  wife  of  R.  B.  INIayes, 
and  Louisa  Williams,  the  wife  of  John  Williams,  for  and  during  their 
natural  lives  ;  and  tliis  bequest  is  to  their  sole  and  separate  use  in 
which  their  husbands  respectively  shall  have  no  right  or  interest."   .   .   . 

It  is  next  insisted  that  1)3-  the  law  of  Louisiana  the  promissory  note  * 
of  the  wife,  made  as  surety  for  her  husband,  is  void  for  want  of  the  I 
capacity  of  the  wife  to  enter  into  such  a  contract,  and  that,  being  void  I 
by  the  lex  loci  co>Uractiis,  it  is  void  everywhere.     This  position  is  truc>J 


SECT.  IV.]  FRIERSON    V.    WILLIAMS.  383 

if  the  giving  of  tlie  note  has  no  other  effect  than  what  it  purports  to 
have  on  its  face,  viz.,  a  personal  obligation  of  the  wife.  But  it  is 
charged  in  the  bill  and  admitted  by  the  demurrer,  that  at  the  time  this 
note'^was  made  in  Louisiana  tlie  wife  had  a  separate  estate  in  realty, 
situated  in  this  State,  and  that  she  contracted  with  reference  to  thisj 
separate  estate,  and  intended  to  charge  it  by  the  promissory  note  in 
controversy.  Whether  this  purpose  can  be  carried  out  with  reference 
to  realty  here,  notwithstanding  the  fact  that  the  note  is  void  by  the 
law  of  Louisiana,  is  the  question  presented  for  our  consideration.  (The 
note,  if  made  here,  would  be  equally  void  by  our  laws  to  bind  the  wife 
personally  ;  yet,  notwithstanding  this,  it  would  be  held,  if  made  with 
the  intent  and  purpose  alleged  in  the  bill,  to  be  a  valid  charge  against 
her  separate  estate  situated  here.  V 

It  is  generally  true  that  the  capacity  of  a  married  woman  to  make  a 
contract  will  be  determined  by  the  law  of  her  domicil ;  but  this  is  not 
the  rule  when  her  contract  relates  to  her  estate  in  realty,  situated  in 
another  jurisdiction.  Judge  Story  says  :  "  The  general  principle  of 
the  common  law  is  that  the  laws  of  the  place  where  such  [immovable] 
property  is  situate  exclusively  govern  in  respect  to  the  rights  of  the 
parties,  the  modes  of  transfer,  and  the  solemnities  which  should  ac- 
company them.  The  title,  therefore,  to  real  property  can  be  acquired, 
passed,  and  lost  only  according  to  the  lex  rei  sitce."  Story,  Confl. 
Laws,  §  424.  And  quoting  from  Sir  William  Grant:  "  The  validity  of 
every  disposition  of  real  estate  must  depend  upon  the  law  of  the  country 
in  which  that  estate  is  situated  ;  "  he  saj's  :  "•  The  same  rule  would  also 
seem  equally  to  apply  to  express  liens  and  to  implied  liens  upon  im- 
movable estate."  Mr.  Burge,  as  quoted  by  Judge  Stor}-,  in  a  note  to 
section  445  of  the  same  work,  says  :  "  The  power  to  alienate  immovable 
property  by  contract  was  a  quality  impressed  on  the  property  ;  that  the 
law  from  which  it  was  derived,  or  by  which  it  is  regulated,  was  a  real 
law;  and  that  the  existence  of  this  power  and  the  validity  of  its  exer- 
cise must  be  decided  by  the  law  of  the  country  in  which  the  property 
was  situated."  And  it  is  said  by  a  learned  author:  ''  No  sovereignty- 
can  permit  the  intrusion  on  its  soil  of  a  foreign  law.  Such  a  law 
ma}'  be  accepted  by  comity  in  cases  in  which  a  contested  issue,  the 
law  applicable  to  which  is  foreign,  comes  up  for  determination  in 
a  home  court.  But  the  imposition  of  any  other  law  than  the  lex 
rei  sitce  as  to  property,  would  be  to  give  foreign  subjects  and  foreign 
laws  an  absolute  control,  unchecked  by  any  discretion  of  the  home 
courts,  over  a  subject-matter  essential  not  merely  to  the  independence, 
but  the  vitality  of  the  State.  .  .  .  The  mischief  is  cured  by  the  adop- 
tion of  the  rule  lex  rei  sitce  regit;  whoever  ma}-  be  the  owner,  or 
wherever  the  contract  was  made,  the  law  of  the  land  reigns.  No 
other  law,  either  as  to  the  transfer  or  control  of  the  property,  is  to 
intrude."  Wharton,  Confl.  Laws,  §§  278,  280.  V These  rules  apply 
to  marital  rights  in  realty,  yjudge  Story,  after  speaking  of  the  rights 
of  husband  and  wife  as  to  personal  property  situated  beyond  the  mat- 


384  rrjEKsoN  v.  williams.  |]chap.  vil 

rimonial  domicil,  saj'S :  "But  real  or  immovable  properly  uugliL  to 
be  left  to  be  adjudged  by  the  lex  rei  sitce  as  not  wilbiu  the  reach 
of  aii3'  extraterritorial  law ;  "  and  in  Vertuer  v.  Humphre}  s,  14  S.  «& 
M.  130,  14:3,  this  court  said  tliat,^"'As  to  immovable  propertv,  the 
law  of  the  place  where  it  is  situated  fixes  the  rights  of  husband  and 
wife  in  it.'V 

The  application  of  these  principles  will  furnish  a  safe  solution  of  the 
question  under  consideration.  \  The  capacity  of  Mrs.  Williams  to  take 
this  property,  and  her  rights  and  powers  over  it,  are  derived  from  and 
regulated  by  the  law  of  this  State.  /  Her  power  of  disposition  and  deal- 
ing with  it  are,  by  our  laws,  impressed  on  the  property  itself.  I  As  to 
none  of  these  things  has  the  law  of  Louisana  the  slightest  influence. 
If  she  had  made  a  contract  expressly  disposing  of  this  property,  it  will 
not  be  denied  that,  though  void  by  the  laws  of  Louisiana,  either  for 
her  want  of  capacity  to  act,  or  the  want  of  the  observances  of  the  forms 
and  solemnities  prescribed  by  those  laws,  yet,  if  valid  by  the  law  of 
this  State,  it  would  have  been  good.  The  contract  here  is  not  strictly 
of  that  character,  yet  the  making  of  it  is  the  exercise  of  the  power  of 
the  wife  to  dispose  of  her  estate  ;  for  whenever  that  power  is  denied, 
the  power  to  charge  it  with  her  debts  is  denied  also,  and  the  charge 
can  only  be  made  effectual  b}'  the  actual  or  threatened  alienation  of 
the  estate,  under  a  decree  of  the  Chancery  Court.  \  The  charging  of  her 
separate  estate  for  the  payment  of  money  does  not  pass  any  actual 
interest  in  the  land,  but  it  is  the  first  and  essential  step  for  a  judicial 
disposition  of  tlie  estate  to  satisfy  the  charge,  and  the  exercise  of  a 
power  of  administration  and  control  over  it,  which,  as  we  have  seen,  is 
governed  solelj-  bv  the  lex  rei  sitce.  \  To  show  that  this  is  its  true  na- 
ture, we  have  onl}'  to  suppose  that,  by  the  law  of  Louisiana,  the  note 
was  a  charge  on  her  realty  situated  there,  and  was  not  by  our  law 
a  charge  on  the  realty  situated  here.  In  such  a  case,  it  would  be 
evident  that  an  attempt  to  enforce  it  here  against  her  real  estate  could 
not  succeed.  If  success  could  attend  such  an  effort,  then  the  several 
rights  and  powers  of  husband  and  wife,  as  to  realtj',  would  not  be  fixed 
and  governed  by  the  laws  of  the  situs  ;  and  the  act  of  a  wife,  done  in 
a  foreign  State,  would  have  the  effect  of  disposing  of  her  realty  here, 
contrarv  to  our  laws. 

But  tliere  is  no  real  conflict  between  the  laws  of  Louisiana  and  Mis- 
sissippi in  reference  to  the  contract.  \  B}'  both  laws  the  note  is  void  for 
what  it  purports  to  be  on  its  face,  —  a  personal  ol)ligation  of  the  wife  ; 
and  it  is  void  for  the  same  reason  in  both,  viz.,  the  personal  incapacity 
of  tiie  wife.  ^  The  difference  between  the  two  laws  is  as  to  the  effect 
on  the  real  property  of  the  wife  in  the  respective  jurisdictions  of  the 
two  States,  and  as  to  which,  as  we  have  above  seen,  the  law  of  the 
State  in  which  the  realt}'  is  situated  is  the  cxchisive  test.  If  the  note 
had  not  been  void  by  our  laws,  as  the  personal  obligation  of  the  wife, 
■we  should  nevertlielcss,  out  of  comity  to  a  sister  State,  adjudgt!  it  void 
to  tliat  extent,  if  attempted  to  be  enforced  here  ;  but  the  principle  of 


SECT.  IV.]  LA   SELLE   V.    ^YOOLEKY.  385 

comitj-  does  not  require  a  State  to  regard  the  laws  of  any  other  State, 
so  far  as  they  may  affect  contracts  in  relation  to  real  estate  situated  in 
the  former  State. 

Decree  reversed,  demurrer  overruled,  and  cause  remanded. 


LA   SELLE   V.   WOOLERY. 
Supreme  Court  of  Washington.     1895,  1896. 
{Reported  \\    Washington,  337  ;  14  Waski7igt on,  70.'] 

HoTT,  C.  J.  Appellant,  William  F.  Collins,  in  a  suit  brought  in 
King  County  against  the  respondent,  William  La  Selle,  duly  recovered 
judgment.  To  this  action  and  judgment  the  respondent,  Marian  E.  La 
Selle,  wife  of  said  William  La  Selle,  was  not  a  party.  Execution 
issued  on  said  judgment,  which  was  placed  in  the  hands  of  J.  H. 
Woolery,  sheriff  of  King  County,  the  other  appellant.  He  made  a 
levy  upon  a  piece  of  real  estate  situated  in  King  Count}',  of  which  the 
paper  title  was  in  the  name  of  said  Marian  E.  La  Selle.  This  suit  was 
then  brought  by  the  respondents,  and  thereby  they  sought  to  enjoin 
the  sale  of  the  property  levied  upon,  and  to  have  it  decreed  that  such 
property  was  not  subject  to  the  lien  of  the  judgment. 

It  was  conceded  that  the  property,  though  standing  in  the  name  of 
the  wife,  Marian  E.  La  Selle,  was  the  community  property  of  herself 
and  her  husband,  William  La  Selle.  It  was,  therefore,  under  the  rule 
established  by  numerous  decisions  of  this  court,  subject  to  the  lien  of 
the  judgment  against  the  husband  alone  if  the  debt  upon  which  such 
judgment  was  rendered  was  that  of  the  community.  It  is  equally  well 
established  by  the  adjudications  of  this  court  tliat  such  property  was 
not  subject  to  the  lien  of  such  judgment  if  the  debt  for  which  it  was 
rendered  was  the  separate  debt  of  the  husband.  It  must  follow  that 
the  nature  of  the  debt  which  was  the  foundation  of  the  judgment  is  the 
material  question  to  be  determined  upon  this  appeal.  If  it  was  that  of 
the  community,  the  sheriff  should  have  been  allowed  to  proceed  to 
satisfy  the  judgment  by  a  sale  of  the  property.  If  it  was  the  debt  of 
the  husband  alone,  the  appellants  were  rightfully  restrained  from  pro- 
ceeding further  against  the  property  in  question.  The  foundation  of 
this  judgment  was  one  against  the  husband  alone,  made  and  entered  in 
the  State  of  Wisconsin,  and  the  foundation  of  that  one  was  a  liability 
incurred  by  the  husband  to  the  appellant  Collins  in  the  prosecution  of 
his  business  as  a  contractor  and  builder  and  proprietor  of  a  sash  and 
door  factory,  and  was  for  materials  sold  to  him  to  be  used  in  the  con- 

z5 


8S6  LA    SEI.LE    V.    WOOLERY.  [CHAP.  TH. 

struction  of  houses  and  to  supply  his  factory.  At  the  time  this  liability 
was  incurred,  and  the  judgment  in  Wisconsin  rendered,  the  respond- 
ents were  living  together  as  husband  and  wife  in  the  State  of  Wisconsin. 
Afterward  they  removed  from  said  State,  and,  from  a  time  preceding 
the  date  of  the  judgment  rendered  in  King  County,  had  been  living 
together  as  husband  and  wife  in  this  State.  .   .   . 

The  substantial  question  presented  by  the  facts  is  as  to  the  status  of 
the  debt  which  was  the  foundation  of  the  judgment  in  AVisconsin  in 
reference  to  the  property  (;f  the  husband  or  husband  and  wife  situated 
in  that  State.  It  appears  from  the  statutes  set  out  in  the  answer  that 
in  that  State  there  is  no  such  thing  as  community  property  as  understood 
here,  nor  is  there  any  such  thing  as  separate  property  of  the  husband  as 
defined  by  our  laws.  The  wife  alone  could  own  separate  property,  and 
the  provisions  in  relation  to  its  acquisition  were  substantially  the  same 
as  in  this  State.  All  other  property  was  that  of  the  husband,  whether 
it  was  acquired  in  such  a  manner  as  to  make  it  under  our  laws  his 
separate  property  or  that  of  the  community.  '  And  all  of  his  property 
under  the  laws  of  that  State  could  be  subjected  to  the  payment  of  debts 
incurred  by  him  alone.  >It  will  be  seen  from  these  provisions  that 
a  debt  incurred  by  the  husband  could  there  be  enforced  against  all  of 
the  property  acquired  by  the  husband  and  wife  either  before  or  after 
marriage  excepting  such  as  under  the  laws  of  that  State  would  be  the 
separate  properly  of  the  wife.  This  is  substantially  the  result  of  the  ' 
laws  of  this  State  as  interpreted  by  former  decisions  of  this  court. 

In  our  opinion  the  comity  which  one  State  owes  to  another  goes  to 
the  substance  rather  than  the  form  of  things.  If  a  certain  right  is 
given  in  one  Slate  as  to  property  of  a  certain  nature,  comity  would 
require  that  those  rights  should  be  enforced  in  another  State  as  to 
property  of  the  same  nature  though  it  might  be  called  by  a  different 
name.  (  In  the  State  of  Wisconsin  property  which  was  acquired  by  the 
joint  labors  of  the  husband  and  wife,  though  called  the  property  of  the 
husband,  was  subject  to  the  payment  of  debts  incurred  by  the  husband 
in  the  prosecution  of  business  for  the  support  of  the  family.V  Property 
acquired  in  the  same  manner  in  this  State  belongs  to  the  community, 
but  is  subject  to  a  liability  incurred  by  the  husband  alone  in  the  prose- 
cution of  business  for  the  same  object  T Hence,  under  the  rule  above 
suggested,  comity  requires  that  a  debt  which  under  the  laws  of  that 
Stat^could  be  enforced  against  property  whicli  from  the  nature  of  its 
acquisition  would  be  that  of  the  community  in  this  Stale,  should  be  here 
enforced  against  property  belonging  to  the  community. 

There  is  nothing  in  the  policy  of  our  legislation  which  will  prevent 
*he  application  of  the  rule  above  stated  to  the  facts  of  this  case.  On 
Mie  contrary,  the  general  policy  of  this  State  upon  the  question  of  the 
liability  of  property  of  the  community  and  of  the  respective  spouses  for 
debts  incurred  by  the  husband  alone  in  tlie  prosecution  of  any  business 
is  in  substantially  the  same  line  as  that  of  the  State  of  Wisconsin. 
But  whether  it  is  or  not,  so  long  as  the  rights  of  the  parties  are  adjudi* 


SECT.  lY.J  LA    SELLE   V.   WOOLERY.  387 

cated  under  the  laws  of  this  State,  its  citizens  have  no  ground  of  com- 
plaint, whatever  may  be  the  result  as  to  those  of  other  States.  And 
since  what  we  have  said  has  been  founded  upon  our  statute,  and  the 
rights  adjudicated  thereunder  liave  been  in  the  light  of  the  facts  shown 
b}'  the  record,  the  respondents  cainiot  complain. 

The  judgment  will  be  reversed,  and  the  cause  remanded  with  in- 
structions to  overrule  the  demurrer  to  the  affirmative  defences  pleaded 
in  the  amended  answer. 

Rehearing  granted. 

Gordon,  J.  A  majority  of  the  court  are  of  the  opinion  that  a  wrong 
conclusion  was  reached  at  the  former  hearing. 

The  case  is  fully  stated  in  the  former  opinion,  in  the  course  of 
which  opinion  the  court  said:  "■  If  a  certain  right  is  given  in  one 
State  as  to  property  of  a  certain  nature,  comity  would  require  that 
those  rights  sl)ould  be  enforced  in  another  State  as  to  property  of 
the  same  nature." 

Upon  further  consideration,  we  think  that  this  is  extending  the 
doctrine  of  comity  too  fixr.  While  comity  might  require  that  rights 
so  acquired,  against  personal  property  merely,  should  be  enforced  in 
this  State  as  against  such  property  (Harrison  v.  Sterry,  5  Cranch,  289  ; 
Wharton,  Conflict  of  Laws,  §  324),  we  do  not  think  it  ought  to  be 
extended  to  property  subsequently  acquired  in  this  State,  although  of 
the  "same  nature,"  and  this  principle  is  wholly  inapplicable  to  real 
property.  The  law  of  the  place  where  the  real  property  is  situated 
must  be  held  to  control  its  disposition,  whether  by  voluntary  or  forced 
sale,  i  McCormick  v.  Sullivant,  10  Wheat.  192. 

Upon  this  subject  no  less  a  writer  than  Story  has  said:   *'A11  the  '^ 
authorities  in  both  countries  [England  and  America],  so  far  as  they    ' 
go,  recognize  the  principle  in  its  fullest  import,  that  real  estate,  or  im-  , 
movable  property,  is  exclusively  subject  to  the  laws  of  the  government  '/- 
within  whose  territory  it  is  situate."     Stor}-,  Conflict  of  Laws,  §  428. 
"Any  title  or  interest  in   land  or  in  other  real  estate  can  onl}-  be 
acquired   or  lost  agreeabl}'  to  the   law  of  the  place  where  the  same 
is  situate."     Id.  §  365. 

(  The  character  of  the  property,  as  regards  the  question  of  its  being 
the  separate  propert}'  of  either  of  the  spouses,  or  the  property  of  the 
community  consisting  of  both  spouses  or  otherwise,  is  fixed  by  the  law 
of  the  State  where  such  propertj-,  if  real  propert}',  is  situated.  *  So, 
too,  the  character  of  the  debt  is  determined  b}'  the  law  of  the  place 
where  it  arose.  If  In*  the  law  of  Wisconsin  it  was  the  sole  individual 
debt  of  the  husband,  it  retained  that  character  here.  Its  status  was 
fixed  b}-  the  law  of  the  place  of  its  creation.  The  debt  which  the 
appellants  are  here  seeking  to  enforce,  being  by  the  law  of  Wisconsin 
where  it  arose  merely  the  separate  individual  debt  of  the  husband, 
enforceable  only  against  his  separate  individual  property,  it  follows 
that  the  judgment  rendered  upon  that  debt  cannot  be  satisfied  out  of 


388  LA    SELLE    V.    WOOLEKY.  [CHAP.  VII. 

the  real  property  of  the  community  acquired  in  this  State  long  after 
the  debt  arose  and  judgment  was  rendered  upon  it. 

The  doctrine  of  the  common  law  is  that:  "  In  regard  to  the  merits 
and  rights  involved  in  actions,  the  law  of  the  place  where  the}'  origi- 
nated is  to  govern.  .  .  .  But  the  form  of  remedies  and  the  order  of 
judicial  proceedings  are  to  be  according  to  the  law  of  the  place  where 
the  action  is  instituted,  without  an}'  regard  to  the  domicil  of  the  par- 
ties, the  origin  of  the  right,  or  the  country  of  the  act."  Story,  Conflict 
of  Laws  (8th  ed.),  §  558. 

The  settled  rule  is  that  the  law  of  the  place  where  the  contract  was 
made  must  govern  in  determining  the  character,  construction,  and  valid- 
ity of  such  contract ;  while  the  law  of  the  place  where  suit  is  instituted 
upon  the  contract  governs  as  to  "  the  nature,  extent,  and  form  of  the 
remed}',  .  .  •  whether  arrest  of  the  person  or  attachment  of  the  prop- 
erty ma}'  be  allowed  ;  whether  a  debt  is  or  is  not  discharged  by  oper- 
ation of  law,  as  insolvent  laws,  or  barred  by  statutes  of  limitation  ; 
rights  of  set-off ;  the  admissibility  and  effect  of  evidence  ;  the  modes 
of  proceeding  and  the  forms  of  judgment  and  execution."  2  Abbott's 
Law  Dictionary,  p.  36. 

In  the  case  of  Rlanchard  v.  Russell,  13  Mass,  1  (7  Am.  Dec.  106), 
the  Supreme  Court  of  Massachusetts,  speaking  by  Chief  Justice  Parker, 
say:  — 

*'But  the  courtesy,  comity,  or  mutual  convenience  of  nations,  among 
which  commerce  has  introduced  so  great  an  intercourse,  has  sanctioned 
the  admission  and  operation  of  foreign  laws  relative  to  contracts  ;  so 
that  is  now  a  principle  generally  received,  that  contracts  are  to  be  con- 
strued and  interpreted  according  to  the  laws  of  the  State  in  which  they 
are  made,  unless  from  their  tenor  it  is  perceived  that  they  were  entered 
into  with  a  view  to  the  laws  of  some  other  State.  .  .  .  The  rule  does 
not  apply,  however,  to  the  process  by  which  a  creditor  shall  attempt  to 
enforce  his  demand  in  the  courts  of  a  State  other  than  that  in  which 
the  contract  was  made.  For  the  remedy  must  be  pursuant  to  the  laws 
of  the  State  where  it  is  sought ;  otherwise  great  irregularity  and  con- 
fusion would  be  introduced  into  the  form  of  judicial  proceedings." 

The  rule  has  long  been  established  in  this  court  thatithe  community 
real  property  is  not  liable  for  the  separate  or  individual  debt  of  the 
husband.  Brotton  v.  Langert,  1  Wash.  73  (23  Pac.  688)  ;  Stockand 
V.  Bartlett,  4  Wash.  730  (31  Pac.  24).  And  it  would  be  productive 
merely  of  confusion  and  disorder  to  limit  the  application  of  this  rule  to 
those  debts  only  which  are  contracted  within  tliis  State. 

One  result  of  such  limitation  would  be  that  the  court  would  be 
required  in  every  case  to  resort  to  the  law  of  the  State  where  the 
debt  arose  in  order  to  determine  what  property  in  that  State  would  be 
liable  for  such  debt,  and  then  to  permit  such  judgment  creditor  to  have 
bis  judgment  satisfied  out  of  like  property  of  the  judgment  debtor  in 
this  State,  without  regard  to  our  own  law  ui)on  the  subject.  And  it 
would  follow  logically  from  such  a  rule  that  property  of  a  judgment 


SECT.  IV.]  LA   SELLE   V.   WOOLERY.  389 

debtor  wliich  is  b}-  our  law  exempt  from  lev}-  and  sale  on  execution 
could  be  subjected  to  the  payment  of  a  judgment  for  a  debt  incurred 
in  some  sister  State  where  the  exemption  laws  were  different  from 
our  own.  All  these  questions  relate  to  the  character  and  extent  of  the 
remed}',  and  not  to  the  construction  or  validity  of  the  contract,  and 
they  are  governed  and  controlled  by  the  lex  fori,  and  not  b}-  the  lex 
loci  contractus  ;\si\\(\.  to  avoid  interminable  confusion  the  distinction 
must  be  observed. 

For  these  reasons  the  order  and  judgment  of  the  Superior  Court  will 
be  affirmed. 

Scott,  Dunbar,  and  Anders,  JJ.,  concur. 

HoTT,  C.  J.  {dissenting).  The  results  which  will  flow  from  the  rule 
announced  in  the  foregoing  opinion  are  su(;h  as  to  satisfy  me  that  it 
cannot  be  the  one  required  by  coniit}*.  A  husband  residing  in  a  sister 
State,  possessed  of  ever  so  much  propert}-  which,  though  the  title  is 
vested  in  him,  is  held  for  the  benefit  of  himself  and  wife,  and  would  from 
the  manner  of  its  acquisition  be  here  lield  to  be  communit}'  property,  and 
was  there  subject  to  debts  for  the  benefit  of  the  famil}',  which  would 
here  be  held  to  be  community  debts,  can  escape  the  payment  of  all  the 
debts  which  may  have  been  contracted  on  the  faith  of  the  propertv  which 
he  owned  by  converting  such  property  into  cash  and  removing  to  this 
State  and  investing  it  in  real  estate.  That  the  laws  of  one  State  slunild 
be  so  construed  as  to  allow  a  debtor  in  another,  possessed  of  abundant 
means  with  which  to  pay  all  of  his  creditors,  to  evade  the  payment  of 
just  debts  in  this  way,  does  not  correspond  with  my  ideas  of  comity. 
In  my  opinion  the  conclusion  reached  upon  the  former  hearing  was  the 
correct  one  and  should  be  adhered  to. 


390  LAWRENCE   V.   KITTEKIDGE.  [CHAP.  VIII. 


CHAPTER   VIII. 

INHERITANCE. 


SECTION   I. 

INTESTATE    SUCCESSION. 


LAWRENCE  v.  KITTERIDGE. 

Supreme  Court  of  Errors,  Connecticut.    1852. 

[Reported  21  Connecticut,  576.] 

Church,  C.  J.^  The  first  decree  of  the  Court  of  Probate  appealed 
from  was  predicated  upon  facts  essentially  as  follows,  viz.,  Cephas 
Pettibone,  the  intestate,  at  the  time  of  his  death,  wa.s  an  inhabitant  of, 
and  had  his  domicil  in,  the  State  of  Vermont,  and  was  possessed  of  an 
estate  there  ;  and  there  was  due  to  him  here,  from  a  citizen  of  this 
State,  a  debt  of  about  one  thousand  dollars.  Original  administration 
upon  his  estate  was  granted  in  the  State  of  Vermont,  and  was  in 
progress  when  an  ancillary  administration  was  granted  in  this  State. 
When  the  decree  appealed  from  was  made,  there  were  no  unsatisfied 
debts  due  from  the  estate  here,  or  in  Vermont,  and  nothing  but  a  dis- 
tribution of  the  estate  remained  to  be  done. 

The  intestate  died,  leaving  brothers  and  sisters  of  the  whole  and 
half  blood ;  all,  excepting  the  late  Augustus  Pettibone,  Esq.,  of  Nor- 
folk, who  was  a  brother  of  the  whole  blood,  residing  in  Vermont,  or 
elsewhere,  out  of  this  State  ;  and  he  had  no  other  heirs  at  law.  By  the 
laws  of  Vermont,  the  brothers  and  sisters  of  an  intestate  of  the  whole 
and  half  blood  are  entitled  equally  to  the  estate,  under  the  statute  of 
distribution. 

Upon  the  foregoing  state  of  facts,  the  Court  of  Probate  for  the  Dis- 
trict of  Norfolk  was  of  oi)inion  that  the  personal  estate  of  Cephas 
Pettibone  —  the  chose  in  action  of  one  thousand  dollars  —  should  be 
distributed  according  to  the  laws  of  tiie  State  of  Vermont;  and  that 
this  could  better  be  done,  and  without  injury  to  any  citizen  of  this 
State,  by  transmitting  the  money  to  the  administrator  there,  and  to 
the  jurisdiction  of  the  Court  of  Principal  Administration,  than  to  order 

^   Part  of  the  opinion  only  is  given.  — Ed. 


SECT.  I.]  LAWKENCE   V.    KITTEKIDGE.  391 

a  distribution  of  it  here.     And  therefore  the  decree  appealed  from  was 
made. 

The  appellant,  who  is  the  representative  of  Augustus  Pettibone,  the 
brother  of  the  whole  blood  residing  in  the  District  of  Norfolk,  objects 
to  this  decree,  and  appeals  from  it.  He  claims  that  the  assets  or 
money  in  the  hands  of  the  administrator  here  should  have  been  dis- 
tributed here,  and  according  to  the  laws  of  this  State,  which  prefer  a 
brother  or  sister  of  the  whole  blood  to  one  of  the  half  blood. 

1.  "We  had  supposed  that  the  law  of  the  countr}-  of  the  domicil  of  an 
intestate  governed  and  regulated  the  distribution  of  his  personal  estate  ; 
and  that  this  was  a  principle  of  international  law,  long  ago  recognized 
b}-  jurists  in  all  enlightened  governments,  and  especially  recognized  by 
this  court  in  the  recent  case  of  Holcomb  v.  Phelps,  16  Conn.  R.  127, 
133,  in  which  we  say  that  "It  certainly  is  now  a  settled  principle  of 
international  law,  that  personal  property  shall  be  subject  to  that  law 
which  governs  the  person  of  the  owner,  and  that  the  distribution  of 
and  succession  to  personal  property,  wherever  situated,  is  to  be  gov- 
erned by  the  laws  of  that  country  where  the  owner  or  intestate  had  his 
domicil  at  the  time  of  his  death."  Sto.  Conf.  Laws,  403,  in  notis, 
§§  480,  465  ;  2  Kent's  Com.,  Lect.  37  ;  2  Kaine's  Prin.  Eq.,  312,  826  ; 
Potter  r.  Brown,  5  East,  124  ;  Balfour  r.  Scott,  6  Bro.  Pari.  Cas.  550 
(Toml.  ed.)  ;  Bempde  v.  Johnstone,  2  Ves.  198  ;  Pepon  v.  Pepon,  Amb. 
25,  415;  Guier  v.  O'Daniel,  1  Binn.  349,  in  notis ;  Harvey  v.  Rich- 
ards, 1  Mason,  381. 

It  is  not  necessary  that  we  should  now  examine  the  reasons,  whether 
of  public  policy  or  legal  propriety,  which  have  led  the  tribunals  of  civil- 
ized nations  to  relax  from  antiquated  notions  on  this  subject ;  some  of 
these  are  well  considered  by  Judge  Story,  in  the  case  of  Harvey  v. 
Richards,  1  Mason,  381,  and  by  Chancellor  Kent,  in  his  Commentaries, 
vol.  2,  Lect.  37. 

It  is  true  that  it  is  in  the  power  of  every  sovereignty,  and  within  the 
constitutional  powers  of  the  States  of  this  Union,  to  repudiate  this  sal- 
utary doctrine  in  its  application  to  themselves,  or  to  modify  it  for  what 
tliey  may  suppose  to  be  the  protection  of  their  own  citizens ;  but  with- 
out some  pecuUar  necessity,  it  cannot  be  supposed  that  any  well-regu- 
lated government  will  do  it.  It  was  claimed  in  argument,  in  this  case, 
that  this  had  been  done  in  this  State,  and  by  the  provision  of  the  49th 
section  of  our  statute  for  the  settlement  of  estates  (Stat.  357),  "by  de- 
claring that  when  there  are  no  children,  etc.,  of  an  intestate,  his  "real 
and  personal  estate  shall  be  set  off  equally  to  the  brothers  and  sisters 
of  the  whole  blood."  But  it  was  not  the  purpose  of  this  provision  to 
disregard  the  universal  and  salutary  doctrines  of  the  law  to  which  we 
have  referred,  but  only  to  regulate  the  descent  and  distribution  of  the 
estate  of  our  own  citizens.  This  provision  of  our  statute  is  not  peculiar 
to  ourselves  ;  a  similar  one,  we  presume,  may  be  found  in  the  codes  of 
other  States ;  at  least,  imperative  enactments  exist  in  every  State, 
directing  the  distribution  of  estates  ;  but  none  of  them  are  intended  to 


392  LYNCH   V.   GOVERNMENT    OF    PARAGUAY.         [CHAP.  VIII. 

repeal  the  law  of  the  domicil  in  its  effect  upon  the  personal  estate  of 
the  owner.  The  controversy  in  the  case  of  Holcomb  v.  Phelps  arose 
under  the  same  section  of  our  law  as  does  the  one  now  under  consid- 
eration, and  the  result  of  that  case  must  settle  this  question,  if  it  be 
one. 

There  are  cases  in  which  the  law  of  the  domicil  has  been  modified  or 
restrained,  in  its  full  operation,  for  what  courts  have  supposed  to  be 
the  proper  protection  of  the  rights  of  the  citizens  of  their  own  States ; 
but  these  are  generally  confined  to  cases  in  which  creditors  are  in  some 
way  interested  under  insolvent  proceedings,  assignments,  or  bankrupt 
laws,  and  never,  we  believe,  are  extended  to  mere  cases  of  distribution, 
as  here  claimed.     Sto.  Conf.  L,,  277,  §  337.^ 


LYNCH  V.  PROVISIONAL   GOVERNMENT  OF   PARAGUAY. 

CouKT  OF  Probate.     1871. 

[Reported  Law  Reports,  2  Probate  and  Divorce,  268.] 

The  plaintiff  claimed  probate  (as  universal  legatee)  of  the  will  of 
Francisco  Solano  Lopez,  who  died  at  Paraguay  on  the  1st  of  March, 
1870.  A  caveat  having  been  entered  by  the  defendants,  they  were 
called  upon  to  propound  their  interest,  and  they  accordingly  filed  the 
following  declaration  :  —  » 

"1.  That  Francisco  Solano  Lopez,  the  deceased  in  this  cause,  was 
a  native  of  Paraguay,  and  at  the  time  of  his  death,  which  took  place 
in  Paraguay,  on  or  about  the  1st  day  of  March,  1870,  was  domiciled 
there. 

"2.  That  by  the  law  of  nations,  and  by  the  law  of  England,  the 
succession  to  the  personal  estate  and  effects  of  the  said  deceased, 
wheresoever  situate,  and  also  the  right  to  administer  to  the  said  estate, 
is  to  be  governed  by  the  law  of  Paraguay. 

"  3.  That  by  a  decree  of  the  Government  of  Paraguay,  dated  the 
4th  day  of  May,  1870,  all  the  property  of  said  deceased,  wheresoever 
situate,  is  declared  to  be  the  property  of  the  nation  of  Paraguay,  and 
that  such  decree  is  valid  and  now  binding  and  operative  by  the  law  of 
Paragua}'. 

-  Ace.  Somerville  v.  Lord  Somerrille,  5  Ves.  749,  786 ;  Doglioni  ;•.  Crispin,  L.  R. 
.  H.  L.  .301  ;  Hewitt  v.  Cox,  55  Ark.  225,  17  S.  W.  873 ;  Estate  of  Apple.  66  Cal.  432 ; 
In  re  Afflick,  3  McArth.  95:  Kussoll  v.  Madden,  95  111.  485;  Lewis's  Estate,  32  La. 
Ann.  385;  Hairston  v.  Ilairston.  27  Miss.  704:  White  v.  Tcnnant.  31  W.  Va.  790, 
8  S.  E.  596.  But  see  Succession  of  Petit.  49  La.  Ann.  625,  21  So.  717.  Contra,  by 
statute,  Cooper  v.  Beers,  143  111.  25,  33  \.  E.  61. 

So  the  widow's  allowance  is  to  be  governed  by  the  law  of  her  husband's  domicil  at 
death.     Mitchell  v.  Ward.  64  Ga.  208.  —  Ed. 


SECT.  I.]  LYNCH   V.    GOVERNxMENT   OF   PARAGUAY.  393 

"4.  That  by  the  now  existing  law  of  Paragua}',  no  will  or  testamen- 
taiT  paper  whatsoever  of  the  said  Francisco  Solano  Lopez  is  entitled  to 
probate,  or  has  any  validit}'  whatsoever  in  England  or  elsewhere. 

'•5.  That  by  the  now  existing  law  of  Paraguay,  the  said  Government 
of  Paraguay,  or  their  officer,  or  attorney,  is  entitled  to  become  the  sole 
personal  representative  in  England  of  the  said  deceased,  and  to  take 
the  grant  of  letters  of  administration  in  England  of  his  personal  estate 
and  effects  situate  in  England. 

"6.  That  Richard  Lees,  the  defendant,  is  by  a  power  of  attorney, 
duly  executed  b}'  the  President  of  the  Republic  of  Paragua}'  on  behalf 
of  the  said  republic,  dated  the  22d  daj'  of  December,  1870,  duly  author- 
ized to  oppose  the  grant  of  probate  of  an}'  testamentary  document  of 
the  said  deceased,  and  the  grant  of  any  letters  of  administration  of  the 
estate  of  the  said  deceased,  to  any  other  person,  and  to  apply  for  letters 
of  administration  of  all  the  personal  estate  and  effects  of  the  said  de- 
ceased situate  in  England,  to  be  granted  to  him  under  such  power  of 
attorney,  and  that  he  is  by  reason  of  the  premises  the  only  person  enti- 
tled to  be  constituted  the  personal  representative  of  the  said  deceased 
in  England." 

To  this  declaration  the  plaintiff  demurred,  and  the  demurrer  came  on 
for  argument  on  the  4th  of  May,  1871.^ 

Lord  Penzance,  having  stated  the  declaration,  said :  To  this  decla- 
ration the  plaintiff  has  demurred,  and  the  ground  of  demurrer  relied 
upon  is,  that  the  decree  upon  which  the  defendants'  claim  is  based  is 
not  alleged  to  have  been  in  force  at  the  date  of  the  testator's  death. 
Some  other  points  were  taken  in  argument  raising  a  discussion  of 
con^^iderable  interest ;  but,  on  reflection,  I  am  satisfied  that  the  date 
of  the  decree  relied  upon  by  the  defendants  is  fatal  to  their  claim  in 
this  suit.  The  general  proposition  that  the  succession  to  personal 
property  in  England  of  a  person  dying  domiciled  abroad  is  governed 
exclusively  by  the  law  of  the  actual  domicil  of  the  deceased  was  not 
denied  ;  but  it  was  affirmed  by  the  plaintiff  that  this  proposition  had 
relation  only  to  the  law  of  the  domicil  as  it  existed  at  the  time  of  the 
death  of  the  individual  in  question,  and  that  no  changes  made  in  that 
law  after  the  date  of  the  death  can  by  the  law  of  this  country  be  recog- 
nized as  affecting  the  distribution  of  personal  property  in  England. 
This  contention  appears  to  me  well  founded.  A  general  statement  of 
the  rule  of  law  on  this  head  is  to  be  found  in  §  481  of  Story's  Conflict 
of  Laws.  He  says:  "The  universal  doctrine  now  recognized  by  the 
common  law,  although  formerly  much  contested,  is,  that  the  succession 
to  personal  property  is  governed  exclusively  by  the  law  of  the  actual 
domicil  of  the  intestate  at  the  time  of  his  death."  The  words  "at  the 
time  of  his  death"  are  here  carefully  inserted  as  part  of  the  principal 
proposition,  and  a  long  list  of  authorities  is  cited  in  support  of  that 
proposition,  in  none  of  which  is  any  passage  to  be  found  indicating  that 
those  words  are  not  a  necessary  part  of  it.     But  it  was  ingeniously 

1  Arguments  of  counsel  are  omitted.  —  Ed. 


394  LYNCH   V.    GOVERNMENT   OF   PARAGUAY.  [CHAP.  VIII. 

argued  that  the  decree  in  question  has  b}-  the  law  of  Paragua}'  a  retro- 
spective operation,  and  that,  though  the  decree  was,  in  fact,  made  since 
the  death,  it  has  by  the  law  of  Paraguay  become  part  of  that  law  at  the 
time  of  the  death.  In  illustration  of  this  view  it  was  suggested,  that 
if  the  question  were  to  arise  in  a  court  of  Paraguay  such  court  would 
be  bound  by  the  decree,  and  therefore  bound  to  declare  the  provisions 
of  the  decree  to  be  effective  at  and  from  the  time  of  the  death.  This 
may  be  so ;  but  the  question  is,  whether  the  English  courts  are  bound 
in  like  manner ;  or,  more  properly  speaking,  the  question  is,  in  what 
sense  does  the  English  law  adopt  the  law  of  the  domicil?  Does  it  adopt 
the  law  of  the  doraicil  as  it  stands  at  the  time  of  the  death,  or  does  it 
undertake  to  adopt  and  give  effect  to  all  retrospective  changes  that  the 
legislative  authority  of  the  foreign  country  may  make  in  that  law?  No 
authority  has  been  cited  for  this  latter  proposition,  and  in  principle  it 
appears  both  inconvenient  and  unjust.  Inconvenient,  for  letters  of 
administration  or  probate  might  be  granted  in  this  country  which  this 
court  might  afterwards  be  called  upon,  in  conformity  with  the  change 
of  law  in  the  foreign  countrj-,  to  revoke.  Unjust,  for  those  entitled  to 
the  succession  might,  before  any  change,  have  acted  directly  or  indi- 
rectly upon  the  existing  state  of  things,  and  find  their  interests  seriously 
compromised  by  the  altered  law.  As,  therefore,  I  can  find  no  warrant 
in  authority  or  principle  for  a  more  extended  proposition,  I  must  hold 
myself  limited  to  the  adoption  and  application  of  this  proposition,  that 
the  law  of  the  place  of  domicil  as  it  existed  at  the  time  of  the  death 
ought  to  regulate  the  succession  to  the  deceased  in  this  case.  Under 
that  law  the  present  defendants  have  no  locus  standi  to  oppose  any  will 
the  testator  may  have  made,  and  no  concern  with  his  estate.  The 
demurrer  must  therefore  prevail. 

I  will  onl}'  further  observe,  that  if  the  decree  upon  which  the  defend- 
ants rely  is  one  entitled  to  be  recognized  and  enforced  in  this  country- 
in  regard  to  the  personal  property  of  the  deceased,  the  defendants'  claim 
under  it  will  be  equally  good,  whether  there  is  a  will  or  not.  It  does 
not  devolve  upon  this  court  to  adjudicate  upon  the  property  of  the  de- 
ceased, but  only  to  ascertain  whether  he  has  made  a  good  will ;  and,  if 
not,  to  grant  administration  of  his  effects.  The  defendants  would,  in 
any  event,  therefore,  have  to  establish  their  claim  under  the  decree 
in  the  proper  courts  of  this  country-  before  they  can  obtain  the  right 
to  appropriate  the  property  of  which  the  deceased  died  possessed  in 
England. 

If  it  should  there  be  held  that  this  decree  in  Paraguay,  penal  in  its 
character,  and  made  after  the  death  of  the  person  to  be  affected  l)y  it, 
is  one  which  the  English  courts  will  not  enforce  upon  his  personal  prop- 
erty in  this  country,  this  court  will  have  done  well  in  not  permitting 
those  who  have  no  interest  in  the  estate  to  provoke  a  litigation  upon 
the  validity  of  any  will  the  deceased  may  have  made.  If  a  contrary 
conclusion  should  be  arrived  at,  and  the  personal  property  of  whii'h  the 
deceased  died  possessed  shall  be  determined  to  have  passed  to  the  de- 


SECT.  II.]  IN   RE    MAKTIN.  395 

fendants  by  virtue  of  the  decree  upon  which  this  decision  arises,  no 
will,  however  made,  can  operate  upon  it,  and  the  proceedings  in  this 
court  can  neither  prevent  nor  retard  the  defendants  in  the  acquisition 
of  their  rights. 

The  court  accordingly  pronounced  for  the  demurrer,  with  costs. 


SECTION   II. 

TESTAMENTARY   SUCCESSION. 


In  re  martin. 
Court  of  Appeal.     1900. 
[Reported  [1900]  Probate,  211.] 

Appeal  from  the  judgment  of  Sir  F.  Jeune,  President,  allowing 
probate  of  a  will.^ 

LiNDLEY,  M.  R.^  The  will  which  is  in  question  in  this  case  was  made 
in  this  country  by  a  Frenchwoman  before  her  marriage,  and  was  not 
attested  as  required  by  English  law.  By  English  law,  by  which  I  mean 
English  law  irrespective  of  all  foreign  law,  the  will  is  therefore  clearly 
invalid.  But  foreign  law  must  be  taken  into  account.  Those  principles 
of  private  international  law  which  are  recognized  in  this  country  are 
part  of  the  law  of  England  ;  and  on  those  principles  the  validity  of  the 
will,  so  far  as  it  affects  movable  property,  depends  on  the  law  of  the 
domicil  of  the  testatrix  when  she  died.  The  domicil  of  the  testatrix 
must  be  determined  by  the  English  Court  of  Probate  according  to  those 
legal  principles  applicable  to  domicil  which  are  recognized  in  this  coun- 
try and  are  part  of  its  law.  Until  the  question  of  the  domicil  of  the 
testatrix  at  the  time  of  her  death  is  determined,  the  Court  of  Probate 
cannot  tell  what  law  of  what  country  has  to  be  applied.  The  testatrix 
was  a  Frenchwoman,  but  it  would  be  contrary  to  sound  principle  to 
determine  her  domicil  at  her  death  by  the  evidence  of  French  legal  ex- 
perts. The  preliminary  question,  by  what  law  is  the  will  to  be  governed, 
must  depend  in  an  English  court  on  the  view  that  court  takes  of  the 
domicil  of  the  testatrix  when  she  died.  If  authority  for  these  state- 
ments is  wanted,  it  will  be  found  in  Bremer  v.  Freeman,  10  Moo.  P.  C. 
306  ;  see  pp.  359  et  seq.  ;  Doglioni  v.  Crisi>in  (1866),  L.  R.  1  H.  L.  301  ; 
and  In  re  Trufort  (1887),  36  Ch.  D.  600.  In  each  of  the  last  two  cases 
a  foreign  court  had  determined  the  domicil,  and  the  English  court  had 
also  to  determine  it,  and  did  determine  it  to  be  the  same  as  that  deter- 
mined by  the  foreign  court.       But,  as  I  understand  those  cases,  the 

1  The  statement  of  facts,  and  the  judgment  of  Sir  F.  Jeune,  are  omitted.  —  Ed. 
*  Part  of  the  opiuion  is  omitted.  —  Ed. 


396  IN    KE    MARTIN.  [chap.   VIII. 

English  court  satisfied  itself  as  to  the  domicil  in  the  English  sense  of 
the'term,  and  did  not  simply  adopt  the  foreign  decisions.  The  course 
universally  followed  when  domicil  has  to  be  decided  by  the  courts  of 
this  country  proceeds  upon  the  principles  to  which  I  have  alluded. 

But,  further,  the  validity  of  a  will  of  movables  made  by  a  person 
domiciled  in  a  foreign  country  at  the  time  of  such  person's  death  not 
onlv  may,  but  must,  depend  on  the  view  its  courts  take  of  the  validity 
of  the  will  when  made,  and  on  its  subsequent  revocation  if  that  question 
arises.  These  questions  may  or  may  not  turn  on  the  domicil  of  the  tes- 
tator as  understood  in  this  country.  For  example,  in  tliis  case  it  is 
agreed  on  all  hands  that  by  the  law  of  France  the  will  in  question,  being 
a°holograph  will  made  by  a  French  subject,  was  valid  when  made,  what- 
ever her  domicil  may  have  been  when  she  made  it.  It  is  also  agreed  on 
all  hands  that  by  French  law  marriage  does  not  revoke  the  prior  wills 
of  the  spouses.  But  the  testatrix  married  a  Frenchman  in  this  country 
after  she  made  her  will,  and  the  question  whether  her  will  was  thereby 
revoked  as  to  her  movables  is  the  real  question  on  which  this  case 

turns. 

By  whatever  court  this  question  is  to  be  decided,  the  English  law  of 
marriage,  which  in  such  a  case  involves  and,  indeed,  turns  on  English 
views  of  domicil,  must  be  considered.  If  this  view  be  ignored,  the  effect 
of  the  marriage  will  be  inadequately  and,  indeed,  erroneously  ascer- 
tained. If  the  domicil  of  the  testatrix  is  to  be  treated  as  English, 
when  she  became  a  married  woman  her  will  was  revoked  by  her  raar- 
riao-e,  for  such  is  the  law  of  England  w^hatever  the  intentions  of  the 
parties  may  be  :  1  Jarman  on  Wills,  c.  7  ;  but  if  her  domicil  was  French, 
her  will  would  not  be  revoked  by  English  law,  and  still  less  by  French 
law.  Both  laws  are  alike  in  regarding  her  domicil  as  that  of  her  hus- 
band as  soon  as  she  married  him.  The  effect  of  her  marriage  must, 
therefore,  depend  on  the  English  view  of  his  domicil.  It  would  be 
useless,  and,  indeed,  entirely  misleading,  to  ask  a  French  expert  what 
effect  the  French  law  would  give  to  an  English  marriage,  without  ex- 
plaining the  English  law  to  him,  and  no  explanation  of  that  law  would 
be  adequate  or  correct  if  it  excluded  the  English  view  of  the  domicil  of 
the  parties. 

Having  thus  stated  the  principles  which,  in  my  opinion,  ought  to  be 
applied  to  the  case,  I  proceed  to  consider  the  facts  and  the  evidence  of 
the  experts  called  at  the  trial.  As  already  stated,  the  will  was  made  in 
England  by  a  Frenchwoman  in  tlie  French  language,  and  was  a  holo- 
graph will  valid  by  the  law  of  France  whether  she  was  then  domiciled 
in  England  or  France.  It  was  made  in  1870.  She  was  in  service  in 
England,  and  this  by  French  law  rendered  her  domicil  (in  the  Fre-nch 
sense)  English  at  that  time.  She  afterwards  set  up  a  laimdry  business  in 
London.  Iler  principal  establishment  was  therefore  here,  and,  according 
to  French  law.  she  was  clearly  domiciled  fin  tlie  French  sense)  in  Eng- 
land. In  ]\r:iv,  1874,  she  married  a  French  rofniroe  known  by  the  name 
of  Martin.     He  came  over  to  this  country  in  18G8,  and  made  a  living  by 


SECT.  II.]  IN   KE   MARTIN.  397 

teaching  French.  There  was  no  settlement,  or  an3'thmg  in  the  nature 
of  a  settlement.  The  marriage  was  celebrated  by  a  French  Roman 
Catholic  priest  in  a  Roman  Catholic  church  in  the  presence  of  a  regis- 
trar. At  the  time  of  the  marriage  both  the  man  and  the  woman  signed 
a  declaration  stating  that  they  were  both  domicilies  in  London.  They 
lived  together  in  London  for  some  years  and  carried  on  the  laundr}'. 
In  1881,  1884,  and  1888,  leases  of  the  laundry  house  were  granted  to 
the  husband.  In  1890  tlie  husband  and  wife  separated;  he  assigned 
the  leases  to  her  and  returned  to  France,  where  he  has  ever  since  lived 
and  lives  now.  His  wife  remained  here  and  continued  to  carry  on  the 
laundry  business  until  her  death  in  January,  1895.  It  was  believed 
that  she  had  died  intestate,  and  her  brother  obtained  letters  of  adminis- 
tration to  her  estate.  The  will,  which  had  been  sent  to  France  in  1870 
and  had  been  deposited  with  a  notary,  was  brought  forward  recently 
by  the  testatrix's  sister,  who  was  constituted  by  it  her  residuary  legatee. 
At  her  instance  the  letters  of  administration  have  been  revoked,  and 
probate  of  the  will  has  been  granted.  The  will  has  been  judicially  rec- 
ognized as  valid  in  France.  But  as  the  proceedings  there  were  ex 
parte,  I  attach  little  importance  to  this  fact,  although  no  appeal  has  yet 
been  made  to  set  aside  the  order  so  obtained. 

The  learned  President  decided,  and,  in  my  opinion,  rightly  decided, 
that  the  domicil  of  the  testatrix  in  the  English  sense  was  French  when 
she  died.  It  became  necessary,  therefore,  to  determine  whether  by  the 
law  of  France  her  will  was  valid  when  she  died.  Experts  were  called 
and  examined  and  cross-examined  at  great  length  on  a  number  of  points, 
many  of  which  are  not  now,  at  all  events,  material  or  in  controversy. 
The  experts  all  agreed  that  the  will  was  valid  when  made.  They  also 
all  agreed  that  according  to  French  law  the  testatrix  was  domiciled  (in 
the  French  sense)  in  England  when  she  made  her  will  and  when  she 
married.  They  also  all  agreed  that,  according  to  French  law  and  in  the 
French  sense,  her  husband  was  domiciled  in  England  when  he  married. 
Treating  the  husband  and  wife  as  domiciled  in  England  when  they  mar- 
ried, they  differed  as  to  the  consequences.  MM.  Gaustalla,  Gorostarzu, 
and  Mesnil  think  that  the  marriage  revoked  the  will.  M.  Mesnil  is 
quite  clear  upon  the  point ;  the  others  are  less  so,  but  they,  I  think, 
take  the  same  view.  M.  Astoul.  when  first  called,  stated  that  the 
marriage  did  not  revoke  the  will ;  that  it  depended  on  nationality,  not 
domicil  in  the  French  sense.  When  recalled  he  apparently  adhered  to 
his  opinion,  but  considered  that  the  revocation  might  depend  on  the 
intention  of  the  parties  and  on  the  adoption  of  the  matrimonial  regime 
by  the  spouses. 

"  All  these  experts  based  their  opinion  on  their  view  that  at  the  time 
of  the  marriage  the  parties  were  domiciled  in  England,  and  they  ap- 
plied the  English  law  of  marriage  to  that  state  of  things.  But,  as  I 
have  already  pointed  out,  the  English  law  of  marriage,  when  considered 
with  reference  to  its  effect  on  property,  involves,  and  in  a  case  like  this 
cannot  be  severed  from,  English  views  of  domicil.     The  learned  Presi- 


398  IN    RE    MAKTIN.  [CHAP.  VIII. 

dent  came  to  the  conclusion  that  the  domicil  of  the  husband  at  the  time 
of  the  marriage  was  in  France,  not  in  England.  But  he  also  came  to 
the  conclusion  that  both  husband  and  wife  intended  to  marr}-  according 
to  English  law,  and  that  the  English  matrimonial  law  should  and  would 
govern  their  future  propert}'.  He  further  considered  that  the  law  by 
which  wills  are  revoked  b}'  marriage  was  not  part  of  the  English  matri- 
monial law,  but  part  of  the  English  testamentary-  law,  and  that  this  law 
did  not  appl}-  to  the  case.  I  confess  I  have  great  difficulty  in  adopting 
this  view  of  the  case.  If,  as  the  President  considered,  the  parties  were 
(according  to  English  views)  domiciled  in  France  when  they  married, 
their  marriage  would  not  revoke  their  previous  wills  ;  and  the  French 
experts  should  have  been  told  so,  and  should  have  been  directed  that 
their  assumption  of  an  English  domicil  was  inadmissible.  It  is  plain 
from  their  evidence  that,  according  to  French  law,  the  domicil  (in  the 
French  sense)  of  both  husband  and  wife  was  in  England  and  not  in 
France,  both  when  the  marriage  took  place  and  when  the  testatrix  died. 
I  have  no  doubt  that  this  conclusion  was  quite  correct ;  but  for  the 
reasons  I  have  already  given  I  consider  it  necessar}'  to  examine  the 
effect  of  the  marriage  according  to  English  views  of  domicil. 

I  proceed,  therefore,  to  inquire  whether  the  President  was  right  in 
his  view  that  the  husband  was  domiciled  (in  the  English  sense)  in  France 
and  not  in  England  when  he  married.  We  start  with  the  fact  that  the 
husband  had  a  domicil  of  origin  in  France.  According  to  English  law, 
the  burden  of  proving  that  he  lost  that  domicil  and  acquired  an  English 
domicil  is  on  those  who  assert  that  he  did  so.  Further,  the  domicil  to 
be  acquired  must  be  domicil,  not  in  the  French  sense,  but  in  the  Eng- 
lish sense.  The  experts  all  tell  us  that  he  lost  his  French  domicil,  in 
the  French  sense,  by  coming  to  England  and  setting  himself  up  as  a 
teacher  of  languages  here.  But  to  acquire  an  English  domicil  in  the 
English  sense,  not  only  is  a  change  of  residence  and  place  of  business 
required,  but  there  must  be  an  intention  to  adopt  the  new  residence 
permanentl}-,  or  for  an  indefinite  period  :  see  the  authorities  collected 
in  Dicey 's  Conflict  of  Laws,  pp.  104  et  seq.  I  cannot  come  to  the  con- 
clusion that  this  intention  is  proved.  .  .  . 

The  domicil  of  the  testatrix  being  French  when  she  made  her  will 
and  when  she  died,  it  became  necessary  to  ascertain  the  effect  of  her 
will  on  her  movable  property  according  to  French  law.  The  husband 
being,  in  my  opinion,  domiciled  in  France  when  she  married,  it  became 
necessary  to  ascertain  the  effect  of  such  marriage  by  French  law  upon 
her  will ;  and  if,  in  order  to  ascertain  this,  it  became  necessary  for  the 
French  experts  to  be  told  what  the  English  law  was,  they  shoidd  have 
been  told  that  it  depended  on  the  view  which  an  English  court  would 
take  of  the  domicil,  in  the  English  sense,  of  the  husband  ;  and  if  I  am 
right  in  m}-  view  of  iiis  domicil,  the  experts  should  have  been  told  that 
by  I^nglish  law  the  marriage  in  tliis  case  did  not  revoke  the  wife's  will. 
It  was  not  necessary  or,  indeed,  proper  on  this  occasion  to  pursue  the 
inquiry  further  and  to  see  what  matrimonial  regime  the  parties  intended 


SECT.  II.J  MOULTRIE    V.    HUNT.  399 

to  adopt.  It  is  not  necessary'  to  cite  authorities  to  sliow  tliat  it  is  now 
settled  that,  according  to  international  law  as  understood  and  adminis- 
tered in  England,  the  effect  of  marriage  on  the  movable  propert}-  of 
spouses  depends  (in  the  absence  of  an}-  contract)  on  the  domicil  of  the 
husband  in  the  English  sense.  The  authorities  will  be  found  collected 
in  Footers  International  Law,  2d  ed.,  pp.  315-321,  and  Dicey's  Conflict 
of  Laws,  pp.  648  et  seq.  This  being  clear  the  will  was  not  revoked  ; 
and  not  revoked  it  was  clearl}'  valid  as  regards  the  wife's  movable 
property-.  Section  18  of  the  Wills  Act  does  not  apply  to  the  wills  of 
foreigners  who  die  domiciled  abroad  (Deane's  Wills  Act,  note  to  §  18, 
cites  an  authorit}-  for  this),  and  the  effect  of  the  marriage  was  not  to 
vest  the  wife's  property  in  the  husband.  French  law  did  not  so  vest  it, 
neither  did  international  law  as  understood  and  administered  in  tliis 
country.  The  Englisli  law  applicalile  to  English  people,  and  according 
to  which  a  woman's  personal  property  formerly  vested  in  her  husband 
on  marriage,  and  according  to  which  her  will  was  revoked  by  marriage 
even  before  the  Wills  Act,  could  not,  on  principle,  apply  to  French 
spouses  married  in  England,  but  (according  to  English  views)  domiciled 
in  France  when  they  married. 

In  my  opinion  the  will  has  been  properly  admitted  to  probate  ;  but  it 
will  not  apply  to  leasehold  property,  for  that  is  not  regarded  as  mov- 
able property,  to  which  the  lex  domicilii  is  applicable.  Dicey,  p.  72. 
A  great  quantity  of  expert  evidence  was  taken  on  the  difficult  question 
whether  the  French  law  of  commimaute  des  biens  was  to  be  applied  to 
the  property  of  these  persons.  As  I  understand  the  expert  evidence, 
the  question  turns  not  only  on  the  marriage,  but  on  the  effect  of  what  the 
husband  and  wife  did  afterwards.  This  question  may  arise  liereafter, 
but  it  does  not  arise  now,  and  I  purposely,  therefore,  say  nothing  more 
about  it. 

Vaughan  Williams,  L.  J.^  I  agree  in  the  conclusion  of  Sir  F. 
Jeuxe  that  the  husband  and  wife  intended  to  keep  an  establishment  in 
England,  and  that  they  intended  to  marry  under  Englisli  law,  and  to 
adoi)t  it  as  their  matrimonial  law  ;  but  I  base  this  conclusion  on  the  fact, 
whicli  Sir  F.  Jeuxe  does  not  accept,  that  at  the  date  of  the  marriage  the 
husband  had  an  English  domicil. 


MOULTRIE  V.   HUNT. 
Court  of  Appeals,  New  York.     1861. 

[Reported  23  New  York,  394.] 

Denio,  J.^     One  of  the  requisites  to  a  valid  will  of  real  or  personal 
property,  according  to  the  Revised  Statutes,  is,  that  the  testator  should, 

1  Part  of  this  opinion,  and  the  coni'urriug  upiuiou  of  Rigby,  L.  J.,  are  omitted. 
—  Ed. 

2  Part  of  this  opinion,  and  the  dissenting  opinion,  are  omitted.  —  Ed. 


400  MOULTRIE   V.    HUNT.  [CHAP.  Vni. 

at  the  time  of  subscribing  it,  or  at  the  time  of  acknowledging  it,  declare, 
in  the  presence  of  at  least  two  attesting  witnesses,  that  it  is  his  last 
will  and  testament.  2  R.  S.  p.  63,  §  40.  The  will  which  the  Surrogate 
of  New  York  admitted  to  probate,  bj-  the  order  under  review,  was 
defectively  executed  in  this  particular  —  the  onlj- statement  which  the 
alleged  testator  made  to  the  witnesses  being  that  it  was  his  signature 
and  seal  which  was  affixed  to  it.  It  was  correctly  assumed  b}'  the 
Surrogate  in  his  opinion,  and  b}'  the  Supreme  Court  in  pronouncing  its 
judgment  of  affirmance,  that  the  instrument  could  not  be  sustained  as  a 
will  under  the  provisions  of  tlie  Revised  Statutes,  but  that,  if  it  could  be 
upheld  at  all,  it  must  be  as  a  will  executed  in  another  State,  according 
to  the  law  prevailing  there  ;  and,  upon  that  view,  it  was  established  by 
both  these  tribunals  as  a  valid  testament.  In  point  of  fact  the  instru- 
ment was  drawn,  signed,  and  attested  at  Charleston,  in  South  Carolina, 
where  such  a  declaration  of  the  testator  to  the  witnesses,  as  has  been 
mentioned,  is  not  required  to  constitute  a  valid  execution  of  a  will. 
Mr.  Hunt,  the  alleged  testator,  resided  at  that  time  in  Charleston  ;  but, 
some  time  before  his  death,  he  removed  to  the  cit}'  of  New  York,  and 
he  continued  to  reside  in  that  cit}'  from  that  time  until  his  death.  The 
will  was  validl}-  executed,  according  to  the  laws  of  South  Carolina. 

Although  the  language  of  our  statute,  to  which  reference  has  been 
made,  includes,  in  its  generality,  all  testamentary'  dispositions,  it  is, 
nevertheless,  true,  that  wills,  dul}'  executed  and  taking  effect  in  other 
States  and  countries  according  to  the  laws  in  force  there,  are  recognized 
in  our  courts  as  valid  acts,  so  far  as  concerns  the  disposition  of  personal 
propertj'.  Parsons  v.  Lyman,  20  N.  Y.  103.  This  is  according  to  the 
law  of  international  corait}'.  Every  countrj'  enacts  such  laws  as  it  sees 
fit  as  to  the  disposition  of  personal  propert}'  by  its  own  citizens,  either 
inter  vivos  or  testamentary;  but  these  laws  are  of  no  inherent  obligation 
in  an}-  other  countr}'.  Still,  all  civilized  nations  agree,  as  a  general 
rule,  to  recognize  titles  to  movable  property  created  in  other  States  or 
countries  in  pursuance  of  the  laws  existing  there,  and  b}-  parties  domi- 
ciled in  such  States  or  countries.  This  law  of  comity  is  parcel  of  the 
municipal  law  of  the  respective  countries  in  which  it  is  recognized,  the 
evidence  of  which,  in  the  absence  of  domestic  legislation  or  judicial 
decisions,  is  frequently  sought  in  the  treatises  of  writers  on  interna- 
tional law,  and  in  certain  commentaries  upon  the  civil  law  which  treat 
more  or  less  copiously  upon  sul)jects  of  this  nature. 

If  the  alleged  testator  in  the  present  case  had  continued  to  be  an 
inhabitant  of  South  Carolina  until  his  death,  we  should,  according  to 
this  principle,  have  regarded  the  will  as  a  valid  instrument,  and  it  would 
have  been  the  duty  of  our  probate  courts  to  have  granted  letters  testa- 
mentary to  the  executors  named  in  it.  The  statute  contemplates  such  a 
case  wlicn  it  provides  for  the  proving  of  such  wills  upon  a  commission 
to  be  issued  by  the  Chancellor,  and  for  granting  letters  upon  a  will 
admitted  to  probate  in  another  State.  2  R.  S.  p.  67,  §§  68,  69.  These 
provisions  do  not  profess  to  define  under  what  circumstances  a  will 


SSCT.  II.]  MOULTKIE    a    HUNT.  401 

made  in  a  foreign  jurisdiction,  not  in  conformity  with  our  laws,  shall 
be  valid.  It  only  assumes  that  such  wills  may  exist,  and  provides  for 
their  proof. 

The  question  in  the  present  case  is,  whether,  inasmuch  as  the  testa- 
tor changed  his  domicile  after  the  instrument  was  signed  and  attested, 
and  was,  at  the  time  of  his  deatli,  ah-esident  citizen  of  this  State,  he 
can,  within  the  sejise  of  the  law  of  comity,  be  said  to  have  made  his 
will  in  South  Carolina.  The  paper  which  was  signed  at  Charleston 
had  no  effect  upon  the  testator's  property  while  he  remained  in  that 
State,  or  during  his  lifetime.  It  is  of  the  essence  of  a  will  that,  until 
the  testator's  death,  it  is  ambulatory  and  revocable.  No  rights  of 
property,  or  powers  over  property,  were  conferred  upon  any  one  by  the 
execution  of  this  instrument ;  nor  were  the  estate,  interest,  or  rights  of 
the  testator  in  his  property  in  any  way  abridged  or  qualified  by  that 
act.  The  transaction  was,  in  its  nature,  inchoate  and  provisional.  It 
prescribed  the  rules  by  which  his  succession  should  be  governed,  pro- 
vided he  did  not  change  his  determination  in  his  lifetime.  I  think 
sufficient  consideration  was  not  given  to  this  peculiarity  of  testamentary 
dispositions,  in  the  view  which  the  learned  Surrogate  took  of  the  case. 
According  to  his  opinion,  a  will,  when  signed  and  attested  in  conformity 
with  the  law  of  the  testator's  domicil,  is  a  "  consummate  and  perfect 
transaction."  In  one  sense  it  is,  no  doubt  a  finished  affair ;  but  I  think 
it  is  no  more  consummate  than  a  bond  would  be  which  the  obligor  had 
prepared  for  use  by  signing  and  sealing,  but  had  kept  in  his  own  pos- 
session for  future  use.  The  cases,  I  concede,  are  not  entirely  parallel ; 
for  a  will,  if  not  revoked,  takes  effect  b}'  the  death  of  the  testator, 
which  must  inevitably  happen  at  some  time,  without  the  performance 
of  any  other  act  on  his  part,  or  the  will  of  any  other  party ;  while  the 
uttering  of  a  written  obligation,  intended  to  operate  inter  vivos,  requires 
a  further  volition  of  the  part}-  to  be  bound,  and  the  intervention  of 
another  party  to  accept  a  delivery,  to  give  it  vitality.  But,  until  one 
or  the  other  of  these  circumstances  —  namely,  the  death,  in  the  case  of 
a  will,  or  the  deliver}',  where  the  instrument  is  an  obligation  —  occurs, 
the  instrument  is  of  no  legal  significanc}'.  In  the  case  of  a  will  it 
requires  the  death  of  the  part}',  and  in  that  of  a  bond  a  delivery  of  the 
instrument,  to  indue  it  with  any  legal  operation  or  effect.  The  exist- 
ence of  a  will,  duly  executed  and  attested,  at  one  period  during  a 
testator's  lifetime,  is  a  circumstance  of  no  legal  importance.  He  must 
die  leaving  such  a  will,  or  the  case  is  one  of  intestacy.  Betts  v. 
Jackson,  6  Wend.  173-181.  The  provisions  of  a  will  made  before  the 
enactment  of  the  Revised  Statutes,  and  in  entire  conformity  with  the 
law  as  it  then  existed,  but  which  took  effect  by  the  death  of  the  testator 
afterwards,  were  held  to  be  annulled  by  certain  enactments  of  these 
statutes  respecting  future  estates,  notwithstanding  the  saving  contained 
in  the  repealing  act,  to  the  effect  that  the  repeal  of  any  statutory  pro- 
vision shall  not  affect  any  act  done,  &c.,  previous  to  the  time  of  the 
repeal.     De  Peyster  v.  Clendiaiug,  8  Paige,  295  ;  2  R.  S.  p.  779,  §  5^ 

26 


402  MOULTEIE    V.    HUNT.  [CHAP.  VIIL 

Bishop  V.  Bishop,  4  Hill,  138.  The  Chancellor  declared  that  the 
trusts  and  provisions  of  the  will  must  depend  upon  the  law  as  it  was 
when  it  took  effect  by  the  death  of  the  testator ;  and  the  Supreme 
Court  affirmed  that  doctrine.  There  is  no  distinction,  in  principle, 
between  general  acts  bearing  upon  testamentary  provisions,  like  the 
statute  of  uses  and  trusts,  and  particular  directions  regarding  the 
formalities  to  be  observed  in  authenticating  the  instrument ;  and  I  do 
not  doubt  that  all  the  wills  executed  under  the  former  law,  and  which 
failed  to  conform  to  the  new  one,  where  the  testator  survived  the  enact- 
ment of  the  Revised  Statutes,  would  have  been  avoided,  but  for  the 
saving  in  the  70th  section,  b}'  which  the  new  statute  was  not  to  impair 
the  validity  of  the  execution  of  a  will  made  before  it  took  effect.  2  R.  S. 
p.  68.  If,  as  has  been  suggested,  a  will  was  a  consummated  and  perfect 
transaction  before  the  death  of  a  testator,  no  change  in  the  law  subse- 
quently made  would  affect  it  —  the  rule  being,  that  what  has  been 
validly  done  and  perfected  respecting  private  riglits  under  an  existing 
statute  is  not  affected  by  a  repeal  of  the  law.  Reg.  v.  The  Inhabitants 
of  Denton,  14  Eng.  L.  &  Eq.  124,  per  Lord  Campbell,  C.  J. 

If  then  a  will  legally  executed  under  a  law  of  this  State,  would  be 
avoided  by  a  subsequent  change  made  in  the  law,  before  the  testator's 
death,  which  should  require  different  or  additional  formalities,  it  would 
seem  that  we  could  not  give  effect  to  one  dul}'  made  in  a  foreign  State 
or  countr}-,  but  which  failed  to  conform  to  the  laws  of  this  State,  where, 
at  the  time  of  its  taking  effect  by  the  testator's  death,  he  was  no  longer 
subject  to  the  foreign  law,  but  was  fully  under  the  intluence  of  our  own 
legal  institutions.  The  question  in  each  case  is,  whether  there  has 
been  an  act  done  and  perfected  under  the  law  governing  the  transaction. 
If  there  has  been,  a  subsequent  change  of  residence  would  not  impair 
the  validity  of  the  act.  We  should  be  bound  to  recognize  it  by  the  law 
of  comity,  just  as  we  would  recognize  and  give  validity  to  a  bond 
reserving  eight  per  cent  interest,  executed  in  a  State  where  that  rate  is 
allowed,  or  a  transfer  of  property  which  was  required  to  be  under  seal, 
but  which  had  in  fact  been  executed  by  adding  a  scroll  to  the  signer's 
name  in  a  State  where  that  stood  for  a  seal  or  the  like.  An  act  done 
in  another  State,  in  order  to  create  rights  which  our  courts  ought  to 
enforce  on  the  ground  of  comity,  must  be  of  such  a  character  that  if 
done  in  this  State,  in  conformity  with  our  laws,  it  could  not  be  con- 
stitutionally impaired  by  subsequent  legislation.  An  executed  transfer 
of  property,  real  or  personal,  is  a  contract  within  the  protection  of  the 
Constitution  of  the  United  States,  and  it  creates  rights  of  property 
which  our  own  Constitution  guarantees  against  legislative  confiscation. 
Yet  I  presume  no  one  would  suppose  that  a  law  prescribing  new 
qualifications  to  the  right  of  devising  or  bequeathing  real  or  personal 
proi)erty,  or  new  regulations  as  to  the  manner  of  doing  it,  and  making 
the  law  applicable  in  terms  to  all  cases  where  wills  had  not  already 
taken  effect  by  the  death  of  the  testator,  would  be  constitutionall3' 
objectionable. 


SECT.  IL]  MOULTKIE   V.    HUNT. 


403 


I  am  of  opinion  that  a  will  has  never  been  considered,  and  that  it  is 
not  by  the  law  of  this  State,  or  the  law  of  England,  a  perfected  trans- 
action, so  as  to  create  rights  which  the  courts  can  recognize  or  enforce, 
until  it  has  become  operative  by  the  death  of  the  testator.  As  to  all 
such  acts  which  remain  thus  inchoate,  they  are  in  the  nature  of  unexe- 
cuted intentions.  The  author  of  them  may  change  his  mind,  or  the  State 
may  determine  that  it  is  inexpedient  to  allow  them  to  take  effect,  and 
require  them  to  be  done  in  another  manner.  If  the  law-making  power 
may  do  this  by  an  act  operating  upon  wills  already  executed,  in  this 
State,  it  would  seem  reasonable  that  a  general  act,  like  the  statute  of 
wills,  contained  in  the  Revised  Statutes,  would  apply  itself  to  all  wills 
thereafter  to  take  effect  by  the  death  of  the  testator  in  this  State,  wher- 
ever they  might  be  made  ;  and  that  the  law  of  comit}-,  which  has  been 
spoken  of,  would  not  operate  to  give  validity  to  a  will  executed  in 
another  State,  but  which  had  no  legal  effect  there  until  after  the  testa- 
tor, by  coming  to  reside  here,  had  fully  subjected  himself  to  our  laws ; 
nor  then,  until  his  testamentary  act  had  taken  effect  b}'  his  death. 

It  may  be  that  this  conclusion  would  not,  in  all  cases,  conform  to 
the  expectations  of  testators.  It  is  quite  possible  that  a  person  coming 
here  from  another  State,  who  had  executed  his  will  before  his  removal, 
according  to  the  law  of  his  former  residence,  might  rely  upon  the 
validity  of  that  act ;  and  would  die  intestate,  contrary  to  his  intention, 
in  consequence  of  our  laws  exacting  additional  formalities  with  which 
he  was  unacquainted.  But  it  may  be  also  that  a  well-informed  man, 
coming  here  under  the  same  circumstances,  would  omit  to  republish, 
according  to  our  laws,  his  will,  made  at  his  former  domicil,  because  he 
had  concluded  not  to  give  legal  effect,  in  this  jurisdiction,  to  the  views 
as  to  the  disposition  of  his  property  which  he  entertained  when  it  was 
executed.  The  only  practical  rule  is,  that  every  one  must  be  supposed 
to  know  the  law  under  which  he  lives,  and  conform  his  acts  to  it. 
This  is  the  rule  of  law  upon  all  other  subjects,  and  I  do  not  see  any 
reason  why  it  should  not  be  in  respect  to  the  execution  of  wills. 

In  looking  for  precedents  and  juridical  opinions  upon  such  a  question, 
we  ought,  before  searching  elsewhere,  to  resort  to  those  of  the  country 
from  which  we  derive  our  legal  system,  and  to  those  furnished  by  the 
courts  and  jurists  of  our  own  country.  It  is  only  after  we  have 
exhausted  these  sources  of  instruction,  without  success,  that  we  can 
profitably  seek  for  light  in  the  works  of  the  jurists  of  the  continent  of 
Europe. 

The  principle  adopted  by  the  Surrogate  is  that,  as  to  the  formal  re- 
quirements in  the  execution  of  a  will,  the  law  of  the  country  where  it  was 
in  fact  signed  and  attested  is  to  govern,  provided  the  testator  was  then 
domiciled  in  such  country,  though  he  may  have  afterwards  changed 
his  domicil,  and  have  been  at  his  death  a  domiciled  resident  of  a  country 
whose  laws  required  different  formalities.  Upon  an  attentive  examina- 
tion of  the  cases  which  liave  been  adjudged  in  the  English  and  American 
courts,  I  do  not  find  anything  to  countenance  this  doctrine ;  but  much 


404  MOULTRIE    V.    HUNT.  [CHAP.  VIII. 

authority,  of  quite  a  different  tendenc}'.  The  result  of  the  cases,  I 
think,  is,  that  the  jurisdiction  in  which  the  instrument  was  signed  and 
attested,  is  of  no  consequence,  but  that  its  validity  must  be  determined 
according  to  the  domicil  of  the  testator  at  the  time  of  his  death.  Thus, 
in  Grattan  v.  Appleton,  3  Story's  R.  755,  the  alleged  testamentarj' 
papers  were  signed  in  Boston,  where  the  assets  were,  and  the  testator 
died  there,  but  he  was  domiciled  in  the  British  province  of  New  Bruns- 
wick. The  provincial  statute  required  two  attesting  witnesses,  but  the 
alleged  will  was  unattested.  The  court  declared  the  papers  invalid, 
Judge  Stor}'  stating  the  rule  to  be  firmh'  established,  that  the  law  of 
the  testator's  domicil  was  to  govern  in  relation  to  his  personal  property*, 
though  the  will  might  have  been  executed  in  another  State  or  country 
where  a  different  rule  prevailed.  The  judge  referred,  approvingly,  to 
Desesbats  v.  Berquier,  1  Bin.  336,  decided  as  long  ago  as  1808.  That 
was  the  case  of  a  will  executed  in  St.  Domingo  by  a  person  domiciled 
there,  and  sought  to  be  enforced  in  Pennsylvania,  where  the  effects  of 
the  deceased  were.  It  appeared  not  to  have  been  executed  according 
to  the  laws  of  St.  Domingo,  though  it  was  conceded  that  it  would  have 
been  a  good  will  if  executed  by  a  citizen  of  Pennsylvania.  The  alleged 
will  was  held  to  be  invalid.  In  the  opinion  delivered  by  Chief  Justice 
Tilghman,  the  cases  in  the  English  ecclesiastical  courts,  and  the 
authorities  of  the  writers  on  the  law  of  nations,  were  carefully  examined. 
It  was  declared  to  be  settled,  that  the  succession  to  the  personal  estate 
of  an  intestate  was  to  be  regulated  according  to  the  law  of  the  country 
in  which  he  was  a  domiciliated  inhabitant  at  the  time  of  his  death,  and 
that  the  same  rule  prevailed  with  respect  to  last  wills.  I  have  referred 
to  these  cases  from  respectable  courts  in  the  United  States,  because 
their  judgments  are  more  familiar  to  the  bar  than  the  reports  of  the 
spiritual  courts  in  England.  But  these  decisions  are  fully  sustained 
by  a  series  of  well-considered  judgments  of  these  courts.  De  Bonneval 
V.  De  Bonneval,  1  Curt.  856  ;  Curling  v.  Thornton,  2  Addaras,  6 ; 
Stanley  v.  Bernes,  3  Hag.  373  ;  Countess  Ferraris  v.  Hertford,  3  Curt. 
468.  It  was  for  a  time  attempted  to  qualify  the  doctrine,  in  cases 
where  the  testator  was  a  British  subject  who  had  taken  up  his  resi- 
dence and  actual  domicil  in  a  foreign  country,  by  the  principle  that  it 
was  legally  impossible  for  one  to  abjure  the  country  of  his  birth,  and 
that  therefore  such  a  person  could  not  change  his  domicil ;  but  the 
judgment  of  the  High  Court  of  Delegates,  in  Stanley  >\  Bernes,  finally 
put  the  question  at  rest.  In  that  case  an  Englishman,  domiciled  in 
Portugal  and  resident  in  the  Portuguese  Island  of  Maderia,  made  a  will 
and  four  codicils,  all  of  which  were  executed  according  to  the  Portu- 
guese law,  except  the  two  last  codicils,  and  they  were  all  executed  so  as 
to  be  vaUd  wills  by  the  law  of  England,  if  it  governed  the  case.  Letters 
were  granted  upon  the  will  and  two  first  codicils,  but  the  other  codicils 
were  finally  pronounced  against.  The  Reporter's  note  expresses  the 
result  in  these  words:  "If  a  testator  (though  a  British  subject)  be 
domiciled  abroad,  he  must  conform,  in  his  testamentary  acts,  to  the 


SECT.  II.]  MOULTRIE    V.    HUNT.  405 

formalities  required  by  the  lex  domicilii.'"  See,  also,  Somerville  Vr 
Somerville,  5  Ves.  750  ;  and  Price  v.  Dewhurst,  8  Simons,  279,  in  the 
English  Court  of  Chancery. 

It  is  true  that  none  of  these  decisions  present  the  case  of  a  change 
of  domicil,  after  the  signing  and  attesting  of  a  will.  The}'  are,  not- 
withstanding, fully  in  point,  if  I  have  taken  a  correct  view  of  the 
nature  and  effect  of  a  will  during  the  lifetime  of  the  testator.  But 
the  remarks  of  judges  in  deciding  the  cases,  and  the  understanding  of 
the  Reporters  clearly  show,  that  it  is  the  domicil  of  the  testator  at  the 
time  of  his  death  which  is  to  be  considered  in  seeking  for  the  law 
which  is  to  determine  the  validity  of  the  will.  Thus,  in  De  Bonneval 
V.  De  Bonneval,  the  question  was  upon  the  validity  of  the  will  executed 
in  England,  of  a  French  nobleman  who  emigrated  in  1792,  and  died  in 
England  in  1836.  Sir  Herbert  Jenner  states  it  to  have  been  settled  by 
the  case  of  Stanley  v.  Bernes,  that  the  law  of  the  place  of  the  domicil, 
and  not  the  lex  loci  rei  sitce,  governed  ''the  distribution  of,  and  succes- 
sion, to  personal  property  in  testacy  or  intestacy."  The  Reporters' 
note  is,  that  the  validity  of  a  will  "  is  to  be  determined  by  the  law  of 
the  countr}-  where  the  deceased  was  domiciled  at  his  death." 

Nothing  is  more  clear  than  that  it  is  the  law  of  the  countrj^  where 
the  deceased  was  domiciled  at  the  time  of  his  death,  which  is  to  regulate 
the  succession  of  his  personalty  in  the  case  of  intestacy.  Judge  Story 
sa^'s,  that  the  universal  doctrine  now  recognized  by  the  common  law, 
is,  that  the  succession  to  personal  propert}-,  ab  intestate,  is  governed 
exclusively  by  the  law  of  the  actual  domicil  of  the  intestate  at  the  time 
of  his  death.  Conf.  Laws,  §  481.  It  would  be  plainly  absurd  to  fix 
upon  an}'  prior  domicil  in  another  country*.  The  one  which  attaches  to 
him  at  the  instant  when  the  devolution  of  property  takes  place,  is 
manifestl}'  the  only  one  which  can  have  anything  to  do  with  the  ques- 
tion. Sir  Richard  Pepper  Arden,  Master  of  the  Rolls,  declared,  in 
Somerville  v.  Somervnlle,  that  the  rule  was  that  the  succession  to  the 
pei'sonal  estate  of  an  intestate  was  to  be  regulated  by  the  law  of  the 
country  in  which  he  was  domiciled  at  the  time  of  his  death,  without 
any  regard  whatever  to  the  place  of  nativit}',  or  the  place  where  his 
actual  death  happened,  or  the  local  situation  of  his  effects. 

Now,  if  the  legal  rules  which  prevail  in  the  country  where  the 
deceased  was  domiciled  at  his  death  are  those  which  are  to  be  resorted 
to  in  case  of  an  intestacy,  it  would  seem  reasonable  that  the  laws  of  the 
same  country  ought  to  determine  whether  in  a  given  case  there  is  an 
intestacy  or  not,  and  such  we  have  seen  was  the  view  of  Chief  Justice 
Tilghman.  Sir  Lancelot  Shadwell,  Vice-Chancellor,  in  Price  v. 
Dewhurst,  also  expressed  the  same  view.  He  said,  "  I  apprehend  that 
it  is  now  clearh'  established  by  a  great  variety  of  cases,  which  it  is  not 
necessary  to  go  through  in  detail,  that  the  rule  of  law  is  this  :  that 
when  a  person  dies  intestate,  his  personal  estate  is  to  be  administered 
according  to  the  law  of  the  country  in  which  he  was  domiciled  at 
the  time  of  his  death,  whether  he  was  a  British  subject  or  not ;  and  the 


406  MOULTRIE    V.   HUNT.  [CHAP    VIIL 

question  whether  he  died  intestate  or  not  must  be  determined  by  the 
law  of  the  same  country."  The  method  of  arriving  at  a  determination 
in  the  present  case,  according  to  this  rule,  is,  to  compare  the  evidence 
of  the  execution  of  his  will  with  the  requirements  of  the  Revised  Stat- 
utes. Such  a  comparison  would  show  that  the  deceased  did  not  leave 
a  valid  will,  and  consequently  that  he  died  intestate. 

Being  perfectly  convinced  that  according  to  the  principles  of   the 
common  law,  touching  the  nature  of  last  wills,  and  according  to  the 
result  of  the  cases  in  England  and  in  this  country  which  have  been 
referred  to,  the  will  under  consideration  cannot  be  sustained,  I  have  not 
thought  it  profitable  to  spend  time  in  collecting  the  sense  of  the  foreign 
jurists,  many  of  whose  opinions  have  been  referred  to  and  copiously  ex- 
tracted in  the  able  opinion  of  the  learned  Surrogate,  if  I  had  convenient 
access  to  the  necessary  books,  which  is  not  the  case.     I  understand  it 
to  be  conceded  that  there  is  a  diversity  of  opinion  upon  the  point  under 
consideration  among  these  writers ;  but  it  is  said  that  the  authors  who 
assert  the  doctrine  on  which  I  have  been  insisting,  are  not  those  of  the 
highest  character,  and  that   their  opinions  have  been  criticised    with 
success  by  M.  Felix,  himself  a  systematic  writer  of  reputation  on  the 
conflict  of  laws.     Judge  Story,  however,  who  has  wrought  in  this  mine 
of  learning  with  a  degree  of  intelligence  and  industry  which  has  excited 
the  admiration  of  English  and  American  judges,  has  come  to  a  different 
conclusion.     His  language  is  :  "  But  it  may  be  asked,  what  will  be  the 
effect  of  a  change  of  domicil  after  a  will  or  testament  is  made,  of  per- 
sonal or  movable  property,  if  it  is  valid  by  the  law  of  the  place  where  the 
party  was  domiciled  when  it  was  made,  and  not  valid  by  the  law  of  his 
domicil  at  the  time  of  his  death  ?     The  terms  in  which  the  general  rule 
is  laid  down  would  seem  sufficiently  to  establish  the  principle  that  in 
such  a  case  the  will  and  testament  is  void  ;  for  it  is  the  law  of  his  actual 
domicil  at  the  time  of  his  death,  and  not  the  law  of  his  domicil  at  the 
time  of  his  making  his  will  and  testament  of  personal  property,  which 
is  to  govern."     Section  473.     He  then  quotes  at  length  the  language  of 
John  Voet  to  the  same  general  effect.     It  must,  however,  be  admitted 
that  the  examples  put  by  that  author,  and  quoted  by  Judge    Story, 
relate  to  testamentary  capacity  as  determined  by  ago,  and  to  the  legal 
ability  of  the  legatees  to  take,  and  not  to  the  form  of  executing  the 
instrument.     And  the  Surrogate  has  shown,  by  an  extract  from  the  same 
author,  that  a  will  executed  in  one  country  according  to  the  solemnities 
there  required,  is  not  to  be  broken  solely  by  a  change  of  domicil  to  a 
place  whose   laws   demand   other   solemnities.     Of  the  other  jurists 
quoted  by  the  Surrogate,  several  of  them  lay  down  rules  diametrically 
opposite' to  those  which   confessedly  prevail  in  this   country  and  in 
England.     Thus,  Tollier,  a  writer  on  the  civil  law  of  France,  declares 
that   the  form  of  testaments  does  not   depend    upon  the  law  of  the 
domicil  of  the  testator,  but  upon  the  place  where  the  instrument  is  in 
fact  executed  ;  and  Felix,  :Malin,  and  Pothicr  are  quoted  as  laying  down 
the  same  principle.     But  nothing  is  more  clear,  upon  the  English  and 


SECT.  II.]  ROBERTSON   V.   PICKRELL,  407 

American  cases,  than  that  the  place  of  executing  the  will,  if  it  is 
different  from  the  testator's  domicil,  has  nothing  to  do  with  determining 
the  proper  form  of  executing  and  attesting.  In  the  case  referred  to 
from  Story's  Reports,  the  will  was  executed  in  Boston,  but  was  held  to 
be  invalid  because  it  was  not  attested  as  required  by  a  provincial  stat- 
ute of  New  Brunswick,  which  was  the  place  of  the  testator's  domicil. 
If  the  present  appeal  was  to  be  determined  according  to  the  civil  law, 
I  should  desire  to  examine  the  authorities  more  fully  than  I  have  been 
able  to  do;  but  considering  it  to  depend  upon  the  law  as  administered 
in  the  English  and  American  courts,  and  that  according  to  the  judg- 
ment of  these  tribunals  it  is  the  law  of  the  domicil  of  the  testator  at 
the  time  of  his  death  that  is  to  govern,  and  not  that  of  the  place  where 
the  paper  happened  to  be  signed  and  attested,  where  that  is  different 
from  his  domicil  at  the  time  of  his  decease,  I  cannot  doubt  that  the 
Surrogate   and  Supreme  Court  fell  into  an  error  in  establishing   the 

will.  .   ,  . 

The  will  under  immediate  consideration  was  not,  we  think,  legally 
executed  ;  and  the  determination  of  the  Surrogate  and  of  the  Supreme 
Court,  which  gave  it  effect,  must  be  reversed. 

CoMSTOCK,  C.  J.,  LoTT,  James,  and  Hoyt,  JJ.,  concurred. 

Davies,  Selden,  and  Mason,  JJ.,  dissented. 

Judgment  reversed.^ 


ROBERTSON  v.  PICKRELL. 
Supreme  Court  of  the  United  States,     1883. 

[Reported  109  United  States,  608.] 

Field,  J.^  This  was  an  action  of  ejectment  for  a  parcel  of  land  in 
the  city  of  Washington,  District  of  Columbia.  On  the  trial  the  plain- 
tiffs gave  in  evidence  a  conveyance  of  the  premises  from  the  United 
States  to  one  Robert  Moore,  executed  in  June,  1800  ;  and  then  endeav- 
ored to  trace  title  from  the  grantee  through  a  devise  in  his  last  will  and 
testament,  bearing  date  in  July,  1803.  For  this  purpose  they  produced 
and  offered  a  transcript  of  proceedings  in  the  Hustings  Court  of  Peters- 
burg, in  the  State  of  Virginia,  containing  a  copy  of  the  will  and  of  its 
probate  in  that  court  in  December,  1804. 

By  the  law  of  Virginia  then  in  force,  that  court  was  authorized  to 
take  the  probate  of  wills,  as  well  of  real  as  of  personal  estate ;  and 

1  Ace.  Nat  V.  Coons,  10  Mo.  543  (semhle).  The  general  principle  that  the  validity 
of  a  will  of  personalty  depends  upon  the  law  of  the  domicil  is  well  established.  Euohin 
V.  Wylie,  10  H.  L.  c'  1  ;  Macdonald  v  Macdonald,  L.  R.  14  Eq.  60 ;  Desesbats  v.  Ber- 
quier,  1  Binn.  336.  The  validity  of  a  bequest  is  judged  by  the  same  law.  Jones  v. 
Habersham,  107  U.  S.  174  ;  Fellows  v.  Miner,  119  Mass.  541  ;  Chamberlain  v.  Cham- 
berlain, 43  N.  Y.  424 ;  Daramert  v.  Osburn,  141  N.  Y.  564,  35  N.  E.  1088.  —  Ed. 

2  Part  of  the  opinion  is  omitted.  —  Ed. 


408  ROBEKTSON    V.   PICKRELL.  [CHAP.  VIII. 

when  a  will  was  exhibited  to  be  proved,  it  could  proceed  immediately 
to  receive  proofs,  and  to  grant  a  certificate  of  its  probate.  Within 
seven  years  afterwards  its  validity'  was  open  to  contestation  in  chan- 
cerj'  by  any  person  interested  ;  but,  if  not  contested  within  that  period, 
the  probate  was  to  be  deemed  conclusive,  except  as  to  parties  laboring 
at  the  time  under  certain  disabilities,  who  were  to  have  a  like  period  to 
contest  its  validity  after  the  removal  of  their  disabilities. 

The  transcript  was  offered  not  merely  as  an  exemplified  cop}-  of  the 
record  of  the  last  will  and  testament  of  Robert  Moore,  and  of  its  pro- 
bate in  the  Hustings  Court,  but  also  as  conclusive  proof  of  the  validity 
of  the  will,  and  of  all  matters  involved  in  its  probate.  Upon  objection 
of  the  defendants'  counsel,  it  was  excluded,  and  an  exception  was 
taken  to  the  exclusion.  The  ruling  of  the  court  constitutes  the  prin- 
cipal error  assigned  for  a  reversal  of  the  judgment. 

We  think  the  ruling  was  correct.  Looking  at  the  transcript  pre- 
sented, we  find  that  it  shows  onh'  that  a  paper  purporting  to  be  the 
last  will  and  testament  of  the  deceased  was  admitted  to  record  upon 
proof  that  the  instrument  and  the  signature  to  it  were  in  his  hand- 
writing. No  witnesses  to  its  execution  were  called,  no  proof  was 
offered  of  the  genuineness  of  the  signatures  of  the  parties  whose 
names  are  attached  to  it  as  witnesses,  and  no  notice  was  given  to 
parties  interested  of  the  proceedings  in  the  Hustings  Court.  As  a 
record  it  furnishes  no  proof  of  an  instrument  executed  as  a  last  will 
and  testament  in  a  form  to  pass  real  estate  in  the  District  of  Columbia. 
The  execution  of  such  a  will  must  be  attested  by  at  least  three  wit- 
nesses. It  matters  not  how  effective  the  instrument  may  be  to  pass 
real  property  in  Virginia ;  it  must  be  executed  in  the  manner  prescribed 
bj-  the  law  in  force  in  the  district  to  pass  real  property  situated  there, 
and  its  validity  must  be  established  in  the  manner  required  by  that  law. 
It  is  familiar  doctrine  that  the  law  of  the  place  governs  as  to  the  for- 
malities necessary  to  the  transfer  of  real  propert}',  whether  testamen- 
tary or  i?7ter  vivos.  In  most  of  the  States  in  the  Union  a  will  of  real 
propert}'  must  be  admitted  to  probate  in  some  one  of  their  courts 
before  it  can  be  received  elsewhere  as  a  conveyance  of  such  property. 
But  by  the  law  of  Maryland,  which  governs  in  the  District  of  Columbia, 
wills,  so  far  as  real  property  is  concerned,  are  not  admitted  to  such 
probate.  The  common-law  rule  prevails  on  that  subject.  The  Oiphans' 
court  there  ma}-,  it  is  true,  take  the  probate  of  wills,  though  they  affect 
lands,  provided  they  atfect  chattels  also  ;  but  the  probate  is  evidence  of 
the  validity  of  the  will  only  so  far  as  the  personal  property  is  concerned. 
As  an  instrument  conveying  real  proportv  the  probate  is  not  evidence 
of  its  execution.  Tliat  must  be  shown  Ijy  a  production  of  the  instru- 
ment itself  and  proof  by  the  subscribing  witnesses  ;  or,  if  the}'  be  not 
living,  by  proof  of  their  handwriting. 

So  it  matters  not  that  the  same  effect  is  to  be  given  in  the  courts  of 
this  district  to  the  record  of  the  Hustings  Court,  which,  by  the  law  of 
Virginia,  can  be  given  to  it  there ;  that  is,  that  it  is  to  be  received  as 


SECT.  II.]  ROBERTSON    V.    PICKRELL.  409 

sufficient  to  pass  the  title  to  real  propei't}'  situated  in  that  State.  The 
question  still  remains  —  is  the  instrument  sufficient  to  pass  title  to  real 
property  in  the  District  of  Columbia?  If  so,  it  should  have  been  pro- 
duced and  proved  in  the  manner  mentioned.  If,  as  stated  b}'  counsel, 
it  is  on  file  in  the  Hustings  Court,  and  by  the  law  of  Virginia  cannot  be 
removed,  then  it  should  have  been  proved  under  a  commission,  as  other 
instruments  out  of  the  State  are  proved,  when  it  is  impossible  to  com- 
pel their  production  in  court. 

The  act  of  Congress  declaring  the  effect  to  be  given  in  any  court 
within  the  United  States  to  the  records  and  judicial  proceedings  of  the 
several  States,  does  not  require  that  the}'  shall  have  any  greater  force 
and  efficacy  in  other  courts  than  in  the  courts  of  the  States  from 
which  they  are  taken,  but  only  such  faith  and  credit  as  by  law  or  usage 
they  have  there.  Any  other  rule  would  be  repugnant  to  all  principle, 
and,  as  we  said  on  a  former  occasion,  would  contravene  the  policy  of 
the  provisions  of  the  Constitution  and  laws  of  the  United  States  on 
that  subject.  Board  of  Public  Works  v.  Columbia  College,  17  Wall. 
521,  529. 

It  does  not  appear  that  the  validity  of  the  will  of  Moore,  as  pro- 
bated in  1804  in  the  Hustings  Court  of  Petersburg,  was  ever  after- 
wards contested  in  a  Court  of  Chancery  in  Virginia.  Its  probate 
must,  therefore,  be  deemed  conclusive,  so  far  as  that  State  is  con- 
cerned, and  the  will  held  sufficient  to  pass  all  property  which  can  be 
there  transferred  by  a  valid  instrument  of  that  kind.  But  no  greater 
effect  can  be  given  out  of  Virginia  to  the  proceeding  in  the  Hustings 
Court.  The  probate  establishes  nothing  beyond  the  validity  of  the  will 
there.  It  does  not  lake  the  place  of  provisions  necessary  to  its  valid- 
ity as  a  will  of  real  property  in  other  States,  if  they  are  wanting.  Its 
validit}'  as  such  will,  in  other  States,  depends  on  its  execution  in  con- 
formity with  their  laws ;  and  if  probate  there  be  also  required,  such 
probate  must  be  had  before  it  can  be  received  as  evidence. 

Authority  for  these  views  is  found  in  the  cases  of  McCormack  v. 
Sullivant.  io  Wheat.  192,  and  of  Darby  v.  Mayer,  10  Wheat.  465.  In 
the  first  of  them  it  appeared  that  by  the  law  of  Ohio,  before  a  will 
devising  real  propertv  can  be  considered  as  valid,  it  must  be  presented 
to  the  court  of  common  pleas  of  the  count}'  where  the  land  lies,  for 
probate,  and  be  proved  by  at  least  two  of  the  subscribing  witnesses, 
unless  it  has  been  proved  and  recorded  in  another  State  according  to 
its  laws  ;  in  which  case  an  authenticated  coi)}'  can  be  offei'ed  for  pro- 
bate without  proof  by  the  witnesses.  A  will  devising  real  property-  in 
that  State  was  admitted  to  probate  in  the  State  of  Pennsylvania,  and 
this  court  held  that  such  probate  gave  no  validit}'  to  the  will  in  respect 
to  the  real  propert}'  in  Ohio,  as  to  which  the  deceased  was  to  be  con- 
sidered as  having  died  intestate.  McCormack  v.  Sullivant,  10  Wheat, 
at  202,  203.  In  the  second  case,  which  was  an  action  of  ejectment  for 
land  in  Tennessee,  the  defendant  endeavored  to  trace  title  to  the  prem- 
ises through  the  will  of  one  Kitts.     For  that  purpose  a  copj'  and  pro- 


410  ROBERTSON    V.    PICKRELL.  [CHAP.  VIII. 

bate  of  the  will  devising  the  property  were  produced  in  evidence, 
certified  from  the  Orphans'  Court  of  Baltimore  County,  Maryland,  and 
admitted  against  the  objection  of  the  plaintiff.  This  court  held  the 
record  inadmissible,  and  in  its  opinion  explained  the  common-law 
doctrine  as  to  what  was  legal  evidence  in  an  action  of  ejectment  to 
establish  a  devise  of  real  property.  It  stated  that  the  ordinary's 
probate  was  no  evidence  of  the  execution  of  the  will  in  ejectment ; 
that  where  the  will  itself  was  in  existence  and  could  be  produced,  it 
was  necessary  to  produce  it ;  and  that  when  the  will  was  lost  or  could 
not  be  produced,  secondary  evidence  was  necessarily  resorted  to  ;  but 
that,  whatever  the  proof,  it  was  required  to  be  made  before  tlie  court 
which  tried  the  cause,  the  proof  before  the  ordinary  being  ex  parte,  the 
heir  at  law  having  no  opportunity  to  cross-examine  the  witnesses,  and 
the  same  solemnities  not  being  required  to  admit  the  will  to  probate, 
which  are  indispensable  to  give  it  validity  as  a  devise  of  real  property. 
And  the  court  added  that  the  law  of  Maryland,  with  regard  to  the  evi- 
dence of  a  devise  in  ejectment,  was  the  common  law  of  England,  and 
had  been  so  recognized  in  decisions  of  the  courts  of  that  State.  Darby 
V.  Mayer,  10  Wheat,  at  468,  469. 

The  first  of  these  cases  shows  that  the  probate  of  a  will  of  real  prop- 
erty in  one  State  is  of  no  force  in  establishing  the  validity  of  the  will 
in  another  State.  That  must  be  determined  by  the  laws  of  the  State 
where  the  property  is  situated.  The  second  case  shows  that  the  proof 
of  a  devise  of  land  in  ejectment  in  Maryland  —  and  its  law  obtains  in 
this  district  —  must  be  made  by  the  production  of  the  will  in  court, 
and  evidence  of  its  execution  by  the  subscribing  witnesses  ;  or,  if  the 
will  be  lost,  or  cannot  be  produced,  the  proof  must  be  made  by  second- 
ary evidence  of  its  execution  and  contents. 

The  plaintiffs  contend  that  they  can  use  the  record  of  the  Hustings 
Court  in  Virginia  as  proof  of  the  genuineness  of  the  instrument,  and 
then  supplement  that  proof  by  parol  evidence  that  the  original  was  exe- 
cuted by  three  witnesses,  and  thus  establish  it  as  a  will  suflficient  to 
pass  real  estate  in  the  District  of  Columbia.  But  in  this  contention 
they  overlook  a  material  circumstance.  It  is  not  sufHcient  to  give 
effect  to  an  instrument  as  a  will  of  real  property  that  its  genuine- 
ness merely  be  established.  Its  genuineness  must  be  shown  by  tlie 
witnesses,  if  they  are  living,  who  attested  its  execution  and  heard 
tlic  declaration  of  the  testator  as  to  its  character,  and,  if  dead,  their 
handwriting  must  be  proved,  as  already  stated.  No  other  proof  will 
answer ;  certainly  not  the  probate  of  the  will  on  ex  parte  testimony 
by  a  tribunal  of  another  State  or  country.^ 

1  The  rnle  here  laid  down  is  of  general  application.  The  law  of  the  situs  of  the 
land  coverns  the  methods  of  executing,  proving,  and  recording  a  will,  so  far  as  it  de- 
vises land.  Callawav...  Doe,  1  Blackf.  .372:  Keith  r.  Keith.  97  Mo.  22.3.  10  8.  W. 
.597  •  Lapham  v.  ( )lnev,  .5  R.  I.  413.  The  same  law  governs  the  validity  of  the  devise . 
Ilobson  V  Hale  95  n'  Y.  .588;  Lewis  r.  Doerle,  28  Ont.  412;  the  nature  of  the  title 
conveyed  :  Pratt  v.  Douglas,  38  N.  J.  Eq.  516  ;  the  right  of  devising  as  against  heirs: 


SECT.  II.J  CANTERBURY   V.    WYBURN.  411 


CARPENTER  v.  BELL. 

Supreme  Court  of  Tennessee.     1896. 
[Reported  96  Tennessee,  294.] 

Beard,  J.  The  will  which  is  the  subject  of  this  litigation  was  exe- 
cuted by  a  yeme  covert,  who  was,  at  tlie  date  of  its  execution  as  well 
as  at  the  time  of  her  death,  a  resident  of  the  State  of  Kentucky,  and 
by  it  the  testatrix  undertakes  to  dispose  of  real  property  in  this  State. 
Notwithstanding  all  the  formalities  required  by  our  statutes  to  validate 
such  a  will  have  been  observed  in  this  case,  yet  it  is  insisted  that,  as 
the  law  of  Kentucky  incapacitates  a  married  woman  from  making  a 
disposition  of  such  property  by  last  will  and  testament,  this  incapacity 
follows  the  instrument  into  this  State  and  defeats  the  devise  of  realty 
located  here.     The  bill  in  this  cause  is  filed  on  this  theory. 

This  contention  is  unsound,  as  is  well  settled  by  the  authorities.  As 
to  immovable  property,  the  rule  is  that  the  lex  rei  sitce  governs  as  to 
the  capacity  or  incapacit}'  of  the  testator,  the  extent  of  his  power  of 
disposition,  and  the  forms  and  solemnities  necessarj^  to  give  the  will  its 
due  authority  and  effect.  Pritchard  on  Wills,  §  53  ;  Williams  v.  Saun- 
ders, 5  Cold.  60  ;  Rorer  on  Int.  Law,  288,  note  ;  Story  on  Con.  of  Laves, 
§  474  ;  White  v.  Howard,  46  N.  Y.  144  ;  Ford  v.  Ford,  70  Wis.  19. 

The  result  is,  that  the  decree  of  the  Chancellor  dismissing  complain- 
ant's bill  will  be  affirmed  with  costs.  ^ 


MAYOR,   ALDERMEN,   AND  CITIZENS   OF  CANTERBURY 

V.  WYBURN. 

Judicial  Committee  of  the  Privy  Council.     1894. 
[Reported  [1895]  Appeal  Cases,  89.] 

Lord  Hobhouse.^  On  the  13th  of  June,  1891,  J.  G.  Beane}',  an 
inhabitant  of  Melbourne,  and  a  domiciled  Victorian,  died,  having  by  a 
codicil  to  his  will  bequeathed  legacies  to  the  appellants  in  the  following 
terms :  — 

"  I  direct  my  said  trustee  to  pa}' to  the  mayor  and  corporation  of  the 
said  city  of  Canterbur}'  for  the  time  being  the  sum  of  ten  thousand 

Eyre  v.  Storer,  .37  N.  H.  114;  the  effect  of  the  will  upon  after-acquired  land  :  Frazier 
V.  Boggs,  37  Fla.  307,  20  So.  245  ;  Wynne  r.  Wynne,  23  Miss.  251. 

In  several  States,  by  statute,  a  will  good  where  made  will  pass  land.  Irwin's  Ap- 
peal, 33  Conn.  128  ;  Lyon  v.  Ogden,  85  Me.  374,  27  Atl.  258. 

A  chattel  real  is  to  be  treated  like  land  in  this  respect.  Pepin  v.  Bruyere,  [1900] 
2  Ch.  504  ;  De  Fogassieras  ;;.  Duport,  11  L.  R.  Ir.  123.  —  Ed. 

1  Ace.  Holman  v.  Hoi)kins,  27  Tex.  38.  —Ed. 

*  The  opinion  only  is  given.  —  Ed. 


412  CANTERBURY    V.   WYBUEN.  [CHAP.  VIII 

pounds,  for  the  purpose  of  their  buying  a  suitable  piece  of  ground  at 
Canterbury  aforesaid  and  erecting  thereon  with  as  little  delay  as  pos- 
sible a  free  library  and  reading-room  for  the  working  classes ;  such 
building  when  erected  to  be  called  '  The  Beaney  Institute  for  the  Edu- 
cation of  Working  Men.'  And  I  also  bequeath  to  the  said  mayor  and 
coiporation  of  the  said  cit}'  of  Canterbury  all  my  medical  diplomas 
and  military  commissions  for  the  purpose  of  their  being  hung  up  and 
exhibited  in  the  principal  hall  of  the  said  building  so  to  be  erected  as 
aforesaid." 

By  another  codicil  he  bequeathed  some  more  articles  of  a  like  kind 
in  a  like  way.  His  residuary  legatees  are  certain  charitable  institu- 
tions in  Melbourne,  of  whom  the  respondents,  the  Melbourne  Hospital, 
have  been  selected  to  defend  the  interests  of  all.  The}'  contend  here 
that  the  gift  of  £10,000  to  the  appellants  must  fail  by  reason  of  the 
English  statute  law  which  restricts  gifts  to  charitable  uses. 

The  case  was  argued  before  A'Beckett,  J.,  upon  certain  questions 
propounded  for  the  court  to  answer ;  and  by  his  answers  that  learned 
judge  maintained  the  validity  of  the  gifts,  and  directed  the  executors 
to  compl}'  with  the  directions  of  the  testator.  He  finds  that  there  is 
nothing  in  tlie  law  of  Victoria  to  prevent  such  a  testamentary  gift.  He 
adds : — 

"If  it  had  been  shown  that  under  the  law  as  it  stands  in  England 
the  corporation  of  Canterbur}'  could  not  lawfully  spend  £10,000  in 
buying  knd  and  erecting  a  building  as  contemplated  by  the  testator, 
and  therefore  that  the  object  of  the  testator  could  not  lawfully  be 
accomplished,  I  should  not  direct  the  executors  to  pay  the  legacy  to 
the  corporation.  This  has  not  been  shown.  It  appears  that  the  cor- 
poration could  lawfully  have  expended  £10,000  in  this  manner  if  the 
testator  had  sent  the  money  to  them  in  his  lifetime,  and  that  they  will 
have  the  right  to  spend  it  in  this  manner  if  sent  them  by  his  executors 
as  directed  by  his  will." 

The  residuary  legatees  appealed,  and  the  full  court  varied  the  deci- 
sion of  the  first  court  by  holding  that  tlie  bequest  of  money  was  invalid, 
and,  the  residuary  legatees  consenting,  that  the  bequests  of  chattels 
were  valid.  The  reasons  of  the  three  learned  judges  are  in  substance 
identical.  They  consider  that  as  the  £10,000  is  given  for  the  purchase 
of  land  in  p:ngland  the  case  is  the  same  as  if  the  testator  had  actually 
devised  land  of  his  own  in  England,  and  they  argue,  justly  enough,  that 
nobod}'  can  so  operate  on  English  land. 

From  their  order,  holding  the  bequest  of  money  invalid,  the  present 
appeal  is  brought ;  and  their  Lordships  have  to  consider  whether  it  is 
right.  Of  course,  there  is  no  doubt  of  the  competency  of  the  English 
legislature  to  for])id  such  gifts.  The  question  is  whether  it  has  done 
so.  It  would  scorn  that  this  is  the  first  occasion  on  which  sucli  a  ques- 
tion has  come  into  court  for  decision. 

It  appears  to  their  Lordships  that  the  arguments  relied  on  by  the  full 
court,  and  by  the  respondents'  counsel  at  this  bar,  err  in  exaggerating 


SECT.  II. J  CANTERBURY   V.    WYBURN.  413 

the  amount  of  prohibition  imposed  by  the  English  statutes,  and  in 
ascribing  to  it  a  more  absolute  effect  than  it  really  has.  The  Attorney- 
General  indeed,  in  his  argument  for  the  residuary  legatees,  insisted  on 
the  title  of  the  Act  of  9  Geo.  II.  c.  36,  passed  in  the  year  1736  :  "An 
act  to  restrain  the  disposition  of  lands,  whereby  the  same  become 
unalienable."  That  title  correctly  expresses  the  object  of  the  act; 
but  it  is  manifest  from  the  preamble  and  the  operative  parts  of  the  act 
that  it  does  not  purport  to  restrain  every  such  disposition,  nor  does  the 
title  say  that  it  does.  If  there  were  an  absolute  prohibition  of  all  gifts 
of  land  for  charitable  uses,  Mr.  Beaney's  gift  could  not  take  effect. 
But  as  in  fact  the  English  statutes  leave  all  persons  as  free  as  they 
were  by  common  law  to  give  or  to  receive  any  amount  of  land  for  those 
purposes,  provided  only  that  they  observe  the  positive  rules  prescribed 
for  them,  the  question  in  each  case  is  whether  the  mode  of  acquiring 
land  is  a  lawful  or  a  forbidden  one. 

The  statute  which  now  governs  this  question  was  passed  in  the  3ear 
1888  (51  &  52  Vict.  c.  42),  and  according  to  a  recent  practice,  it  has 
no  preamble  to  give  the  key  to  its  polic}'.  But  it  is  mainl}'  an  act  of 
consolidation  ;  if  it  effects  any  alteration  in  the  previous  law,  the  differ- 
ence does  not  concern  the  question  now  to  be  decided  ;  and  it  must  be 
taken  that  its  provisions  rest  upon  precisely  the  same  policy  as  those  of 
the  statute  9  Geo.  II.  c.  36. 

The  preamble  of  that  statute  refers  to  the  older  statutes  passed  to 
restrain  the  mischiefs  of  gifts  in  mortmain.  Then  it  proceeds  :  "  Never- 
theless this  publick  mischief  has  of  late  greatly  increased  by  many 
large  and  improvident  alienations  or  dispositions  made  by  languishing 
or  dying  persons,  or  b}'  other  persons,  to  uses  called  charitable  uses, 
to  take  place  after  their  deaths,  to  the  disherision  of  their  lawful  heirs  ; 
for  remed}'  whereof  be  it  enacted."  This,  then,  was  the  mischief  which 
the  legislature  desired  to  abate  :  the  increase  of  land  held  in  mortmain 
by  gifts  which  ma}-  for  brevity,  and  somewhat  loosely,  be  termed 
death-bed  gifts.  The  mode  taken  to  restrain  this  mischief  was  to  enact 
that  no  land,  nor  any  money  to  be  laid  out  in  the  purchase  of  land, 
should  be  given  to  any  person  for  the  benefit  of  an}'  charitable  use, 
unless  the  gift  be  made  by  deed  executed  twelve  calendar  months  at 
least  before  the  death  of  the  donor,  and  enrolled  in  Chancery  within 
six  calendar  months  of  its  execution,  and  unless  the  gift  be  made  to 
take  immediate  effect.  Another  section  extends  the  prohibition  to 
charges  affecting  land,  which  is  a  large  class  —  at  that  date  a  much 
larger  relative  class  than  now  —  of  personal  estate  ;  and  it  declares 
that  the  prohibited  gifts  shall  be  absolutely  null  and  void.  Therefore, 
in  all  cases  of  wills  to  which  the  statute  applies,  such  gifts  are  prohib- 
ited by  its  express  terms. 

It  is  expressly  enacted  that  the  statute  shall  not  extend  to  the  grant 
of  any  estate  in  Scotland.  After  a  time  came  the  question  whether  it 
extends  to  the  Colonies,  and  that  question  was  settled  in  the  negative 
in  the  case  of  Attorney-General  v.  Stewart,  2  Mer.  148,  decided  by  Sir 


414  CANTERBURY   V.   WYBURN.  [CHAP.  VIII. 

William  Grant  in  the  j-ear  1817.  He  considered  that  both  the  mischief 
struck  at  by  the  act,  and  the  methods  prescribed  for  lawful  gifts,  were 
of  a  local  character  peculiar  to  England.  Therefore,  he  held  that  the 
act  did  not  extend  to  Grenada,  though  it  is  in  general  terras,  and 
though  the  laws  of  England  had  been  extended  in  general  terms  to  the 
island  when  first  ceded  in  1763,  and  again  when  recovered  in  1784. 
That  opinion  has  ever  since  prevailed,  and  in  the  case  of  the  Gilchrist 
foundation,  Whicker  v.  Hume,  7  H.  L.  Rep.,  124,  it  was  applied  to  a 
gift  of  land  in  New  South  Wales. 

In  that  state  of  the  law  the  present  act  of  1888  was  passed.  By 
sect.  4,  sub-sect.    1,  it  is  enacted  thus:  — 

"  Subject  to  the  savings  and  exceptions  contained  in  this  act,  every 
assurance  of  land  to  or  for  the  benefit  of  any  charitable  uses,  and  ever}' 
assurancn  of  personal  estate  to  be  laid  out  in  the  purchase  of  land  to  or 
for  the  benefit  of  any  charitable  uses,  shall  be  made  in  accordance 
with  the  requirements  of  this  act,  and  unless  so  made  shall  be  void." 

The  requirements  of  the  act  are  substantially  those  of  the  act  of 
1736.  If  the  assurance  is  of  personal  estate  not  being  stock  in  the 
public  funds,  it  must  be  made  by  deed  enrolled  within  six  months  of 
the  execution,  and,  if  it  is  not  made  for  full  valuable  consideration, 
executed  twelve  months  before  the  death  of  the  assurors.  By  the  inter- 
pretation clause  the  term  "assurance"  includes  a  will.  This  act 
therefore,  subject  to  some  special  exemptions,  prohibits  "  death-bed  " 
gifts  as  strictly  as  does  the  earlier  act.  But  it  is  impossible  to  sup- 
pose that  the  English  legislature  intended  to  affect  a  will  subject  to  the 
law  of  Victoria.  All  the  reasons  against  such  a  construction  which 
were  apphed  to  the  earlier  enactment  applv  to  the  later  one.  It  is 
expressly  declared  that  the  act  does  not  extend  to  Scotland  or  Ireland. 
To  declare  that  a  bequest  made  by  a  colonial  will  shall  be  void  on  the 
ground  that  it  contravenes  the  local  law  of  England  may  not  be  be3-ond 
the  competence  of  the  Imperial  Parliament,  but  is  quite  beyond  its 
ordinary  scope,  and  such  an  intention  ought  not  to  be  imputed  to  it 
without  very  clear  grounds.  Seeing,  indeed,  that  the  repealed  and 
consolidated  statutes  did  not  apply  to  the  Colonies,  and  that  Scotland 
and  Ireland  are  expressly  excepted  from  the  new  statute,  it  is  impos- 
sible without  express  words  to  suppose  that  there  was  an}'  intention  of 
affecting  the  Colonies  by  the  new  statute.  Moreover,  Sir  Wm.  Grant's 
other  reasons  apply  exactly  to  the  present  question.  It  cannot  have 
been  intended  that  methods  of  a  local  character  prescribed  for  making 
a  lawful  gift  should  be  adopted  in  a  distant  colony,  or,  if  not,  that  the 
gift  should  be  invalid. 

Indeed,  the  case  for  the  residuary  legatees  is  not  rested  on  any  such 
broad  ground  as  this.  The  courts  below  are  agreed  that  the  Victorian 
testator  is  quite  free  to  make  such  a  gift  as  he  has  made  ;  nor  has  the 
contrary  been  contended  here.  But  for  that  conclusion  the  word 
"  assurance"  in  the  act  must  receive  the  qualification  that  it  means 
something  which  is  governed  by  English  law. 


SECT.  11.]  CANTERBURY   V.   WYBURN.  415 

Of  course  it  is  a  different  thing  to  sa}-  that  English  law  must  decide 
whether  Eno^lish  land  can  be  bought  with  money  coming  from  such  a 
source  as  a  foreign  will ;  and  that,  if  it  decides  in  the  negative,  the 
bequest  must  fail,  not  because  it  is  illegal,  but  because  it  is  impossible 
of  execution.  The  Attorne}'- General  stated  broadh*  that  the  prohibi- 
tions of  the  Statutes  of  Mortmain  are  an  integral  part  of  the  English 
law  of  real  propei-ty.  So  they  are  ;  but  the  question  is,  how  far  they 
operate.  The  suggestion  is  that  they  operate  to  invalidate  gifts  of 
money  coupled  with  an  obligation  to  lay  them  out  in  land,  if  they 
have  their  origin  in  a  will,  though  a  perfectly  valid  will.  Tlieir  Lord- 
ships cannot  find  such  a  prohibition  in  the  act.  They  have  reached 
the  conclusion  that  this  will  is  not  invalidated  by  sub-sect.  1.  At  what 
point,  then,  of  the  transactions  does  the  English  law  come  in  ?  Is  ot 
between  the  Victorian  testator  and  his  Victorian  executor.  In  their 
Lordships'  view  the  English  law  will  operate  whenever  a  purchase  of 
land  for  the  charitable  uses  is  effected,  but  no  earlier.  The  assurance 
of  that  land  must  be  made  in  accordance  with  the  provisions  of  the 
act.  Anybody  may  give  money  for  such  a  purpose  in  the  permitted 
mode.  The  testator  might  himself  have  bought  land  in  Canterbury 
and  have  devoted  it  to  charitable  uses  quite  lawfull}*.  What  he  might 
do  himself  he  might  do  through  trustees,  by  giving  money  to  trustees 
for  tlie  purpose  of  acquiring  land  in  a  lawful  wa}'.  Is  there  anything 
to  prevent  him  from  ordering  his  executors  to  do  the  same  thing?  The 
answer  is  that  his  will  is  not  affected  by  English  law.  It  is  a  valid 
will  binding  on  his  executors  ;  and  a  Victorian  court  of  justice  should 
direct  them  to  perform  their  obligation. 

It  has  been  contended  verv  earnestly  that  the  point  is  settled  b}-  the 
decision  in  Attorney- General  v.  Mill,  2  Dow  &  CI.  393.  In  that  case 
the  testator  was  a  native  of  Montrose.  He  spent  man}-  years  in  the 
island  of  Cariacou,  where  he  owned  land  and  amassed  a  large  fortune. 
He  returned  to  Montrose,  and  stayed  there  about  five  years.  Then  he 
came  to  England,  and  resided  first  in  London  and  afterwards  in  Bath, 
up  to  his  death  in  1805,  fourteen  ^-ears  afterwards.  In  1791  he  ex- 
ecuted a  will  and  a  deed,  by  which  he  gave  money  to  be  invested  im 
the  purchase  of  land,  ordering  the  income  to  be  paid  to  certain  Scot- 
tish trustees  for  the  benefit  of  indigent  ladies  in  Montrose.  His  will, 
with  four  codicils,  all  in  English  form,  was  proved  in  England.  In  his 
will  and  contemporaneous  deed  he  described  himself  as  of  the  island  of 
Cariacou,  now  residing  in  Marylebone.  His  codicils,  it  was  stated  at 
the  bar,  contained  similar  descriptions.  His  foreign  assets  were  trans- 
mitted to  England,  and  were  administered  under  the  direction  of  the 
Court  of  Chancery  and  were  the  subject  of  a  decree  which  paid  no 
regard  to  the  charitable  gift.  Subsequently  an  information  was  filed 
by  the  Attorney-General  for  the  establishment  of  the  charity  by  pur- 
chase of  land  in  Scotland.  It  was  held  by  Lord  Lyndhurst,  first  in 
Chancery,  and  afterwards  in  the  House  of  Lords,  that  the  testator 
must  be  taken  to  have  directed  the  purchase  of  land  in  England,  and 
that  his  gift  contravened  the  mortmain  laws  and  was  void. 


416  CANTERBURY   V.    WYBURN,  [CHAP.  VIIL 

It  is  now  argued  that  the  testator  was  a  domiciled  Scotsman,  and 
that  the  case  decides  that  a  bequest  of  money  in  a  Scottish  will  direct- 
ing the  purchase  of  land  in  England  for  a  charit}-  is  avoid  bequest.  But 
the  assumption  that  the  testator  had  a  Scottish  domicil  is  not  warranted 
by  anything  to  be  found  in  the  reports.  In  the  meagre  history  of  his 
life  there  is  much  to  suggest  arguments  for  an  Englisli  domicil,  and  the 
counsel  for  the  Attorney-General  who  was  contending  for  the  validity 
of  the  gift  did  not  suggest  any  other  domicil.  The  word  "domicil" 
occurs  onl}'  twice  in  the  reports  of  the  case.  In  one  of  them,  2  Dow  & 
CI.  394,  the  reporter  uses  a  casual  expression  to  the  effect  that  on 
leaving  Cariacou  the  testator  resumed  his  domicil  in  Montrose  ;  an 
expression  which  Lord  St.  Leonards,  writing  many  years  afterwards, 
repeated.  But  the  Scottish  origin  of  the  testator,  and  his  connection 
with  Montrose,  were  only  used  as  arguments  to  show  that  he  contem- 
plated the  purchase  of  land  in  Scotland  —  a  conclusion  which  one  of 
the  reasons  appended  to  the  appellant's  case  urged  the  House  to  adopt 
"even  if  he  were  domiciled  in  England."  For  some  reason,  doubtless 
a  sufficient  one,  it  was  the  common  ground  of  argument  that  the  will 
was  governed  from  first  to  last  by  English  law.  There  is  not  a  trace 
in  the  reported  statements,  arguments,  or  judgments  that  anybody 
asked  what  would  be  the  effect  of  a  will  not  governed  b}'  English  law, 
■which  is  the  question  now  propounded  to  their  Lordships. 

It  is  true  that  Story,  J.  (Conflict  of  Laws,  §  446),  and  Mr.  Westlake 
(Private  International  Law,  §  1G5)  both  treat  the  decision  as  covering 
the  case  of  a  foreign  will.  But  on  examining  the  case  that  appears  to 
their  Lordships  to  be  a  misapprehension  of  the  point  really  decided. 
So  far  as  they  know,  the  present  question  is  wholl}'  untouched  by 
authority. 

Tlie  Attorney-General  dwelt  on  the  amount  of  land  which  might  be 
brought  into  mortmain  if  such  bequests  as  these  were  allowed  to  take 
effect.  Such  considerations  can  hardly  influence  the  construction  of  a 
statute  except  so  far  as  they  may  appear  to  have  been  present  to  the 
minds  of  its  framcrs.  Their  Lordships  can  hardly  suppose  that  any 
one  would  feel  alarm  at  the  idea  of  foreigners  giving  large  sums  of 
money  to  English  purposes  ;  and  if  it  be  true  that  this  is  the  first  case 
of  its  kind  to  come  into  court,  the  experience  of  a  century  and  a  half 
tends  to  prove  the  futility  of  any  such  alarm.  But,  however  that  may 
be,  their  Lordships  must  construe  tlie  words  of  the  statute  according  to 
their  plain  meaning,  and  leave  it  to  the  legislature  to  enact  further 
prohibitions,  if  found  expedient. 

The  result  is  that  their  Lordships  will  humbly  advise  Her  Majesty 
to  discharge  the  order  of  the  full  court,  except  so  far  as  it  deals  with 
the  specific  chattels  and  with  costs.  This  will  in  effect  restore  the 
judgment  of  Mr.  Justice  A'Beckett.  It  has  seemed  right  to  both  the 
courts  below  that  the  costs  of  all  parties  to  the  litigation  should  be  paid 
out  of  the  testator's  estate,  those  of  the  plaintiffs,  who  are  the  execu- 
tors, being  taxed  as  between  solicitor  and  client.     Their  Lordships 


SECT.  II.]  IN    RE    PIERCY.  417 

have  been  asked  to  follow  the  same  course  in  disposing  of  the  costs  of 
this  appeal ;  and  the  residuary'  legatees  raise  no  objection.  Their 
Lordships  will  order  accordingly.^ 


In  re   PIERCY. 

Chancery  Division.     1894. 
[Reported  [189.5]  1  Chancery,  83.] 

Benjamin  Piercy  b}-  his  will,  dated  December  5,  1883,  devised  and 
bequeathed  all  his  real  and  personal  estate  wheresoever  to  trustees  to 
sell  and  convert  into  money  all  such  estates,  to  invest  the  proceeds  in 
English  securities  or  land,  and  to  appl}'  the  income  for  the  benefit  of 
persons  named,  and  for  charity. 

An  order  for  administration  was  made,  which,  among  other  things, 
directed  "  an  inquir}-  what  was  the  testator's  estate  and  interest  in 
lands  situate  elsewhere  than  in  England,  and  whether  such  estates 
passed  b}'  the  testator's  will  and  were  validly  devised  on  the  trusts 
thereof,  and,  if  not,  who  are  entitled  to  such  lands,  and  for  what 
estates  and  interests." 

The  testator  was  the  absolute  owner  of  a  large  extent  of  land  in 
Sardinia.  The  opinions  of  a  number  of  Italian  advocates  were  taken 
as  to  the  validit}*  and  effect  under  Italian  law  of  the  devise  contained 
in  the  will  as  regarded  land  in  Italy. 

The  following  provisions  of  the  Italian  Civil  Code  were  the  most 
material : 

"  i.    Preliminary  directions  as  to  the  interpretation  and 
application  of  the  law  in  general. 

"  Art.  8.  Successions  by  law  or  under  testamentary  disposition, 
whether  as  regards  the  order  of  succession,  or  as  to  the  measure  of  the 
rights  of  succession,  or  the  intrinsic  validity  of  the  disposition,  are 
regulated  b}'  the  national  law  of  the  person  whose  estate  is  in  question, 
whatever  may  be  the  nature  of  the  property,  or  in  whatever  country  it 
ma}'  be  situated. 

"  Art.  9.  .  •  .  The  substance  and  effect  of  testamentarj'  dispositions 
are  regulated  by  the  national  law  of  the  persons  making  them.    .   .   . 

"  Art.  12.  Notwithstanding  the  provisions  of  the  preceding  articles, 
in  no  case  shall  the  laws,  acts,  or  judgments  of  a  foreign  country,  nor 
private  dispositions  or  agreements,  derogate  from  the  prohibitive  laws 
of  the  kingdom  concerning  either  the  persons,  the  property,  or  the 
acts ;  nor  from  the  laws  in  anj*  way  concerning  public  order  and 
moralit}-   (il  huon  costume). 

1  Ace.  Cram  v.  Bli.ss,  47  Conn.  592 ;  Healey  v.  Reed,  153  Mass.  197,  26  N.  E.  404. 
—  Ed. 

27 


418  IN   RE    PIERCY.  [chap.  VIII. 

"  ii.    Civil  Code. 

"  Art.  899.  Any  condition  imposed  upon  an  heir  or  legatee,  no  mat- 
ter how  expressed,  that  he  is  to  retain  the  property,  and  hand  it  over 
to  a  third  part}-,  is  a  trust  substitution.     SucU  substitution  is  torliidend. 

"Art.  900.  The  invalidity  of  the  trust  substitution  does  ncjt  aflect 
the  validity-  of  the  institution  of  the  heir  or  legatee  to  which  it  is  at- 
tached ;  but  it  invalidates  all  the  substitutions,  even  those  of  the  first 
degree." 

This  code  came  into  operation  in  186G,  and  made  verv  considerable 
changes  in  the  laws  of  Italj'  previously  in  force  as  to  land. 

In  1889  the  executors  mortgaged  a  part  of  the  testator's  land  in 
Sardinia  to  an  Italian  bank  for  £20,000.  They  afterwards  sold  other 
portions  of  the  land.  Proceedings  were  also  taken  in  the  Italian  court 
with  reference  to  the  registration  of  the  testator's  propert}'  in  Italy,  for 
the  purpose  of  ascertaining  the  duty  to  be  paid  thereon  according  to 
Italian  law. 

At  the  time  when  this  summons  was  heard,  the  testator's  brother 
and  sister  were  both  dead.^ 

North,  J.  (after  stating  the  provisions  of  the  will,  as  to  which  he 
said  no  difficulty  could  arise  with  respect  to  the  testator's  English 
property,  or  propert}'  which  was  to  be  dealt  with  according  to  English 
law,  referred  to  some  of  the  clauses  of  the  Italian  Code  and  tlie  opin- 
ions of  the  Italian  advocates  and  to  the  facts,  and  continued)  : 

The  question  is,  What  is  the  position  of  matters  as  regards  the  real 
estate  in  Sardinia?  It  is  not  necessary  for  me  to  decide  the  question 
whether,  under  Italian  law,  the  trustees  take  "  as  heirs,"  or  whether 
the  testator's  children  and  brother  and  sister  take  "  as  heirs,"  because 
quucdnque  via  the  will  is  good.  If  the  trustees  take  as  heirs,  then 
everything  beyond  is  'Hrust  substitution,"  which  would  not  be  good 
according  to  Italian  law,  but  the  gift  to  the  heirs  would  stand.  If,  on 
the  other  hand,  as  I  think,  the  trustees  are  not  the  heirs,  but  the  testa- 
tor's children  and  brother  and  sister  are  the  heirs,  then,  in  my  judg- 
ment, according  to  the  preponderating  weight  of  opinion,  coupled  with 
the  evidence  derived  from  what  has  actually  taken  place,  the  trustees 
have,  according  to  Italian  law,  a  clear  power  to  sell  the  testator's  real 
estate  in  .Sardinia  without  any  interference  on  the  part  of  the  persons 
beneficially  interested  in  it.  Tlierefore  the  direction  given  by  the  will 
to  the  trustees  to  sell  the  estate  is  perfectly  good  according  to  Italian 
law. 

Then  the  next  question  is  as  to  the  application  of  the  proceeds  of 
sale.  With  respect  to  that,  in  my  opinion,  the  will  is  perfectly  good, 
because  the  application  of  the  proceeds  is  not  in  any  way  inconsistent 
with  tlie  Italian  law.  The  Italian  law  relates  to  the  land  ;  it  deter- 
mines how  the  land  is  to  go,  and  regulates  the  rights  of  the  various 
persons  interested  in  il.     When  an  absolute  sale  has  taken  i)lace,  the 

1  Tlip  statomont  of  facts  is  coudensed  from  that  of  tlie  Reporter,  and  arguiiients  of 
counsel  are  omitted.  —  Ed. 


SECT.  II.]  IN    KE    PIEECY.  419 

Italian  law  still  applies  to  the  land  in  the  hands  of  the  then  owner  or 
owners ;  but  it  has  nothing  whatever  to  do  with  the  proceeds  of  sale, 
after  the  land  has  been  placed  outside  the  scope  of  the  will  by  a  dispo- 
sition which  is  valid  according  to  Italian  law. 

Then,  as  regards  the  proceeds  of  sale,  is  there  anything  in  Italian 
law  which  renders  it  illegal  for  the  testator  to  do  what  he  has  done  ? 
The  testator  has  directed  that  the  proceeds  of  the  sale  of  the  land 

that  is,  money  to  be  obtained  by  the  English  trustees  —  is  to  be 

received  by  them,  lo  be  invested  upon  English  securities,  and  then  to' 
be  held  by  the  trustees  upon  the  trusts  declared  by  an  English  will  in 
favor  of  English  beneficiaries.  No  one  suggests  that  there  is  anything 
in  Italian  law  forbidding  this.  It  is,  indeed,  said  by  one  of  the  Italian 
advocates  that  the  land  is  the  "  patrimony,"  and  that,  when  the  land  is 
sold,  the  proceeds  of  sale  —  the  money  —  is  still  the  ^^  patrimony." 
What  is  the  law  as  to  that?  It  depends  altogether  upon  the  person  to 
whom  the  money  belongs.  No  doubt,  if  the  money  belongs  to  an 
owner  who  is  subject  to  Italian  law,  whatever  the  Italian  law  forbids 
as  to  trusts  must  be  observed,  and  if  any  person  owning  this  property 
is  subject  to  Italian  law,  and  attempts  to  create  a  trust  which  the 
Italian  law  forbids,  then,  according  to  Italian  law,  the  trust  would  be 
void.  But  when  there  is  an  English  owner  of  money  arising  from  the 
sale  of  land  which  belongs  to  other  persons,  and  is  subject  in  their 
hands  to  Italian  law,  there  is  nothing  in  Italian  law  to  make  that 
money  itself  subject  to  Italian  law  ;  and  therefore,  in  my  opinion,  the 
proceeds  of  sale,  when  received  by  the  trustees  in  pursuance  of  the 
valid  exercise  of  the  power  of  sale  which  they  have  according  to 
the  Italian  law,  pass  entirely  by  the  testator's  will,  because  the  dispo- 
sition is  good  according  to  English  law,  and  is  in  no  way  at  variance 
with  Italian  law,  —  meaning  now  by  "-Italian  law"  not  merely  any- 
thing which  is  expressed  in  the  Italian  Code,  but  anything  contrary  to 
"  good  custom  "  (whatever  that  may  mean),  —  for  the  Italian  law  does 
not  profess  to  regulate  the  disposition  of  English  securities  passing 
under  the  will  of  an  Englishman  to  English  legatees.  In  my  opinion, 
therefore,  the  trust  for  sale  being  valid,  the  application  of  the  proceeds 
of  sale  directed  by  the  will  is  valid  also. 

Then  the  only  question  remaining  is  this.  The  trust  has  not  yet 
been  entirely  executed,  and  at  the  present  moment  a  part  of  the  testa- 
tor's Italian  land  remains  unsold,  and  is,  therefore,  subject  to  the  law 
of  Italy.  The  enjoyment  of  that  land  in  the  meantime,  until  it  has 
been  sold,  is  not  in  any  way  affected  by  the  trust  for  sale,  which  has 
not  yet  been  executed.  We  must  look,  therefore,  to  the  Italian  law  to 
say  what  is  the  right  to  enjoy  the  land  in  the  meantime,  before  the  sale 
has  actually  taken  place.  I  will  take,  first,  the  case  of  the  testator's 
widow.  It  seems  to  me  clear  that,  according  to  Italian  law,  she  is  a 
"  usufructuary,"  in  the  sense  that  the  disposition  in  her  favor  for  life 
is  perfectly  good,  and  that  the  gift  to  the  testator's  children  and  brother 
and  sister,  subject  to  that  usufruct,  is  a  good  disposition. 


420  IN    RE   PIERCY.  [chap.  VIII. 

Then  comes  the  question  of  the  "  trust  substitution  "  ;  and  as  to  that, 
I  come  to  the  conclusion  upon  the  evidence  that  the  propert}'  is  uncon- 
verted during  that  limited  period.  The  Italian  law  applying,  there  can 
be  no  "  trust  substitution,"  and,  that  being  so,  the  attempt  to  settle  the 
shares  on  the  children  and  the  brother  is  not  valid.  As  regards  the 
sister,  there  is  no  question,  because  slie  takes  absolutely'  in  any  case. 
As  regards  the  children,  to  the  extent  of  one  moiet}'  of  their  shares,  and 
the  brother  as  to  the  whole  of  his  share,  there  is  an  attempt  to  settle. 
With  the  exception  of  the  heir  at  law,  Robert  Charles  Piercy,  and  the 
brother  (who  is  dead),  none  of  these  persons  raise  an}'  question.  Ac- 
cording to  the  Italian  law  they  take  absolutel}',  and  the  trusts  over  are 
ineffectual ;  but  with  those  two  exceptions  they  all  say,  "  We  wish  to 
give  effect  to  the  testator's  will  in  this  respect ;  we  are  desirous  that 
the  income  of  the  property  until  conversion  shall,  so  far  as  our  interests 
go,  be  applied  in  the  same  wa}'  as  our  shares  of  the  income  to  arise 
from  the  proceeds  of  the  conversion  directed  by  the  will  will  go  after 
the  conversion  has  taken  place."  There  is  nothing,  in  my  view,  con- 
trary to  Italian  law  in  their  saying  that  the}'  wisli  iheir  shares  of  the 
income  of  the  unsold  land  to  be  applied  in  the  same  way  as  if  they  were 
shares  of  the  income  arising  from  the  proceeds  of  sale  after  the  con- 
version had  taken  place.  Tlie  heir  at  law,  however,  does  not  elect  or 
waive  any  right  which  he  may  have,  and  it  is  unnecessary  for  me  to 
decide  anything  as  to  his  share  at  present.  So  long  as  he  lives,  and 
the  land  remains  unsold,  he  will,  of  course,  be  entitled  to  receive  the 
income  of  his  share,  whether  the  trusts  in  favor  of  his  children  are  good 
or  bad,  and  no  question  between  him  and  his  children,  or  any  other 
person,  can  possibly  arise.  It  may  be  that  all  the  land  will  be  sold 
during  his  lifetime,  and  tlie  question  will  never  arise  as  between  him 
and  his  children.  But  it  is  possible  that  he  may  die  while  part  of  the 
land  remains  unsold,  and  the  question  may  then  arise  between  him 
and  his  children.  Any  directions,  therefore,  which  I  now  give  must 
be  without  prejudice  to  any  question  between  Robert  Charles  Piercy 
on  the  one  hand,  and,  on  the  other  hand,  any  person  who  may  claim 
upon  his  death  to  be  entitled  to  his  one-eleventh  of  tlie  income  to  arise 
from  any  part  of  the  Italian  property  then  remaining  unsold,  until  the 
conversion  thereof. 

The  question  as  to  the  brother's  share  of  the  income  of  the  unsold 
land  must  he  left  open  in  the  same  way  ;  as  he  has  died  recently,  and 
although  his  representatives  are  before  the  court,  and  bound  by  my 
decision  on  the  main  questions,  they  are  not  prepared  to  consider  or 
discuss  this  subordinate  question  at  present ;  and  possibly  it  may  never 
be  raised.^ 

1  Ace.  Ford  v.  Ford,  80  Mich.  42;  Jenkins  v.  G.  T.  &  S.  D.  Co.,  53  N.  J.  Eq.  194, 
32  Atl.  208  ;  I'enfield  v.  Tower,  1  N.  D.  21§,  46  N.  W.  413  ;  Ford  v.  Ford,  70  Wis.  19. 

So  of  a  hequpst  to  be  .sent  into  another  State  and  there  hehi  in  tni.st.  Sickles  v. 
New  Orlean.s,  80  Fed.  868;  Vausant  v.  Roberts,  3  Md.  119;  Chamberlain  v.  Chamber- 
lain, 43  N.  Y.  424.  —  Ed. 


CHAP.  IX.]  PHILLIPS   V.    EYRE.  421 


CHAPTER  IX. 

OBLIGATIOXS   EX   DELICTO. 


PHILLIPS  V.   EYRE. 

Exchequer  Chamber.     1S70. 

[Heported  Law  Reports,  6  Queen's  Bench,  1.] 

WiLLES,  J.^     This  is  au  action  complaining  of  false  imprisonment 
and  other  injuries  to  the  plaintiff  by  the  defendant  in  the  island  of 
Jamaica.     The  plea  states  in  effect  that  the  defendant  was  governor  of 
the  island ;  that  a  rebellion  broke  out  there  which  the  governor  and 
others  acting  under  his  authoritj'  had  arrested  by  force  of  arras  ;  that 
an  act  was  afterwards  duly  passed  by  the  legislature  of  the  island,  and 
received  the  royal  assent,  by  which,  after  reciting  the  rebellion,  a  proc- 
lamation of  martial  law  within   certain   local  limits   by  the  governor 
with  the  advice  of  a  council  of  war :  that  the  rebellion  had  been  sui> 
pressed  and  imminent  general  sacrifice  of  life  thereby  averted  ;  that 
the  militar}',  naval,  or  civil  authorities  might,  according  to  the  law  of 
ordinary  peace,   be  responsible   in   person  or  purse  for  acts  done  in 
good  faith  for  the  purpose  of  restoring  public  peace  and  quelling  the 
rebellion  ;  and  that  all  persons  who  in  good  faith  and  royal  resolve  had 
acted  for  the  crushing  of  the  rebellious  outbreak  ought  to  be  indemni- 
fied and  kept  harmless  for  such  their  acts  of  loyalty,  —  it  was  enacted 
by  the  governor,  legislative  council,  and  assembh'  of  the  island,  amongst 
other  things,  that  the  defendant  and  all  officers  and  other  persons  who 
had  acted  under  his  authority,  or  had  acted  bona  fide  for  the  purpose 
and  during  the  existence  of  martial  law,  whether  done  in  any  district 
in  which  martial  law  was  proclaimed  or  not,  were  thereby  indemnified 
in  respect  of  all  acts,  matters,  and  things  done  in  order  to  put  an  end 
to  the  rebellion,  and  all  such  acts  were  "thereby  made  and  declared 
lawful,  and  were  confirmed."     The  plea  further  states  that  the  griev- 
ances complained  of  in  this  action  were   measures  used  in  the  sup- 
pression of  the   rebellion,   and   were   reasonably  and   in   good    faith 
considered  by  the  defendant  to  be  proper  for  the  purpose  of  putting 
an  end  to,^and  hoita  fide  done  in  order  to  put  an  end  to,  the  rebellion, 
and  so  were  included  in  the  indemnity.     To  this  plea  the  plaintiff  de- 
murred, and  also  replied  that  the  defendant  as  governor  was,  by  the 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


422  PHILLIPS   V.    EYKE.  [CHAP.  IX. 

law  of  Jamaica,  a  necessary  part}'  to  the  making  of  tlie  act.  The 
defendant  demurred  to  that  replication,  and  issues  in  law  were  raised 
upon  the  validity'  of  the  plea  and  replication,  upon  which  issues  the 
Court  of  Queen's  Bench  gave  judgment  for  the  defendant,  whereupon 
the  plaintiff  has  assigned  error.   . 

The  last  objection  to  the  plea  of  the  colonial  act  was  of  a  more 
technical  character ;  that  assuming  the  colonial  act  to  be  valid  in 
Jamaica  and  a  defence  there,  it  could  not  have  the  extraterritorial 
effect  of  taking  away  the  right  of  action  in  an  English  court.  This 
objection  is  founded  upon  a  misconception  of  the  true  character  of 
a  civil  or  legal  obligation  and  the  corresponding  right  of  action.  The 
obligation  is  the  principal  to  which  a  right  of  action  in  whatever  court 
is  onl}'  an  accessory,  and  such  accessor}',  according  to  the  maxim  of 
law,  follows  the  principal,  and  must  stand  or  fall  therewith.  "  Quae 
accessorium  locum  obtinent  extinguuntur  cum  principales  res  perempt^e 
sunt."  A  right  of  action,  whether  it  arise  from  contract  governed  b}- 
the  law  of  the  place  or  wrong,  is  equalh'  the  creature  of  the  law  of  the 
place  and  subordinate  thereto.  The  terms  of  the  contract  or  the  char- 
acter of  the  subject-matter  may  show  that  the  parties  intended  their 
bargain  to  be  governed  b}-  some  other  law  ;  but,  p7'ima  fdcie^  it  falls 
under  the  law  of  the  place  where  it  was  made.  And  in  like  manner  the 
civil  liability  arising  out  of  a  wrong  derives  its  birth  from  tlie  law  of 
the  place,  and  its  character  is  determined  by  that  law.  Therefore,  an 
act  committed  abroad,  if  valid  and  unquestionable  by  the  law  of  the 
place,  cannot,  so  far  as  civil  liability  is  concerned,  be  drawn  in  question 
elsewhere  unless  by  force  of  some  distinct  exceptional  legislation, 
su[)eradding  a  liabilit}'  other  than  and  besides  that  incident  to  the  act 
itself  In  this  respect  no  sound  distinction  can  be  suggested  between 
the  civil  liability  in  respect  of  a  contract  governed  by  the  law  of  the 
place  and  a  wrong. 

Our  courts  are  said  to  be  more  open  to  admit  actions  founded  upon 
foreign  transactions  than  those  of  any  other  European  country" ;  but 
there  are  restrictions  in  respect  of  locality  which  exclude  some  foreign 
causes  of  action  altogether,  nameh',  those  wliich  would  be  local  if  the}' 
arose  in  England,  such  as  trespass  to  land  :  Doulson  v.  JNIatthews, 
4  T.  R.  503  ;  and  even  with  respect  to  those  not  falling  within  that 
description  our  courts  d(^  not  undertake  univiM-sal  jurisdiction.  As 
a  general  rule,  m  order  to  found  a  suit  in  England  for  a  wrong  alleged 
to  have  been  committed  al)road,  two  conditions  must  be  fulfilled. 
First,  the  wron;r  must  be  of  such  a  cliaraftor.  tha_t  it  would  have  been 
actionable  if  committed  in  England;    tlierefore,  in  The  Hallej',   Law 


^ejx  ^  P.  0.  193,  tTieJudicial  Committee  pronounced  against  a  suitTa 
the  Admiralty  founded  upon  a  liability  by  the  law  of  Belgium  for  collision 
caused  by  the  act  of  a  pilot  wiioin  the  shipowner  was  compelled  by  that 
law  to  employ,  and  for  wiiom,  therefore,  as  not  being  his  agent,  he 
was  not  responsible  by  English  law.  Secondly., the  act  must  not  have 
been  justifiable  by  the  Jaw  of  the  place  where  itjwasdDiie.     Therefore, 


CHAP.  IX.]  PHILLIPS   V.    EYRE.  423 

in  Blad's  Case,  3  Swan.  603,  and  Blad  v.  Bamfiold,  3  Swan.  604,  Lord 
Nottingham  held  that  a  seizure  in  Iceland,  authorized  by  the  Danish 
Government  and  valid  by  the  law  of  the  place,  could  not  be  questioned 
by  civil  action  in  England,  although  the  plaintiff,  an  Englishman,  in- 
sisted that  the  seizure  was  in  violation  of  a  treaty  between  this  country 
and  Denmark  —  a  matter  proper  for  remonstrance,  not  litigation.  And 
in  Dobree  v.  Napier,  2  Bing.  N.  C.  781,  Admiral  Napier  having,  when 
in  the  service  of  the  Queen  of  Portugal,  captured  in  Portuguese  water 
an  English  ship  breaking  blockade,  was  held  by  the  Court  of  Common 
Pleas  to  be  justified,  by  the  law  of  Portugal  and  of  nations,  though 
his  serving  under  a  foreign  prince  was  contrary  to  English  law,  and 
subjected  him  to  penalties  under  the  Foreign  Enlistment  Act.  And 
in  Reg.  V.  Lesley,  Bell  C.  C.  220;  29  L.  J.  (M.  C.)  97,  an  imprison- 
ment in  Chili  on  board  a  British  ship  lawful  there,  was  held  bv  Erie, 
C.  J.,  and  the  Court  for  Crown  Cases  Reserved,  to  be  no  ground  for  an 
indictment  here,  there  being  no  independent  law  of  this  country  mak- 
ing the  act  wrongful  or  criminal.  As  to  foreign  laws  affecting  the 
liability  of  parties  in  respect  of  bygone  transactions,  the  law  is  clear 
that,  if  the  foreign  law  touches  only  the  remedy  or  procedure  for  enforc- 
ing the  obligation,  as  in  the  case  of  an  ordinary  statute  of  limitations, 
such  law  is  no  bar  to  an  action  in  this  country  ;  but  if  the  foi'eigu  law 
extinguishes  the  right  it  is  a  bar  in  this  country  equally  as  if  the  ex- 
tinguishment had  been  by  a  release  of  the  party,  or  an  act  of  our  own 
legislature.  This  distinction  is  well  illustrated  on  the  one  hand  bv 
Huber  v.  Steiner,  2  Bing.  N.  C.  202,  where  the  French  law  of  five 
years'  prescription  was  held  by  the  Court  of  Common  Pleas  to  be  no 
answer  in  this  country  to  an  action  upon  a  French  promissory  note, 
because  that  law  dealt  onh'  with  procedure,  and  the  time  and  manner 
of  suit  (tempus  et  inodum  actionis  institiiendce)^  and  did  not  affect  to 
destroy  the  obligation  of  the  contract  {valorem  contractus)  ;  and  on 
the  other  hand  by  Potter  r.  Brown,  5  East,  124,  where  the  drawer  of 
a  bill  at  Baltimore  upon  England  was  held  discharged  from  his  liability 
for  the  non-acceptance  of  the  hill  here  hy  a  certificate  in  bankruptcy, 
under  the  law  of  the  United  States  of  America,  the  Court  of  Queen's 
Bench  adopting  the  general  rule  laid  down  by  Lord  Mansfield  in  Bal- 
lantine  ?'.  Golding,  Cooke's  Bankrupt  Law,  487,  and  ever  since  recog- 
nized that  'twhat  is  a  discharge  of  a  debt  in  the  country  where  it  is 
contracted  is  a  discharge  of  it  everywhere.'  So  that  where  an  obli- 
gation by  contract  to  pay  a  debt  or  damages  is  discharged  and  avoided 
by  the  law  of  the  place  where  it  was  made,  the  accessory  right  of  action 
in  every  court  open  to  the  creditor  unquestionably  falls  to  the  ground. 
And  b}-  strict  parity  of  reasoning,  where  an  obligation,  ex  delicto,  to 
pay  damages  is  discharged  and  avoided  by  the  law  of  the  country 
where  it  was  made,  the  accessor}'  right  of  action  is  in  like  manner 
discharged  and  avoided.  Cases  may  possibh'  arise  in  which  distinct 
and  independent  rights  or  liabilities  or  defences  are  created  by  positive 
and  specific  laws  of  this  country  in  respect  of  foreign  transactions  ;  but 


424  MACHADO    V.    FONTES.  [CHAP.  IX. 

there  is  no  such  law  (unless  it  be  the  Governors  Act  already  discussed 
and  disposed  of)  applicable  to  the  present  case. 

It  ma}'  be  proper  to  remark,  before  quitting  this  part  of  the  subject, 
that  the  colonial  act  could  not  be  overruled  upon  either  of  these  two 
latter  grounds  of  objection(without  laying  down  that  no  foreign  legis- 
lation could  avail  to  take  away  civil  liability  here  in  respect  of  acts 
done  abroad  ^so  that,  for  instance,  if  a  foreign  country  after  a  rebellion 
or  civil  war  were  to  pass  a  general  act  of  oblivion  and  indemnity, 
bur3-ing  in  one  grave  all  legal  memory  alike  of  the  hostilities,  and  even 
the  private  retaliations  which  are  the  sure  results  of  anarchy  and 
violence,  it  would,  if  the  argument  for  the  plaintiff  prevailed,  be  com- 
petent for  a  municipal  court  of  any  other  country  to  condemn  and 
disregard,  as  naturally  unjust  or  technically  ineffectual,  the  law  of 
a  sovereign  State,  disposing,  upon  the  same  constitutional  principles  as 
have  actuated  our  own  legislature,  of  matters  arising  within  its  terri- 
tory —  a  course  which  to  adopt  would  be  an  unprecedented  and  mis- 
chievous violation  of  the  comity  of  nations. 

We  have  thus  discussed  the  validity  of  the  defence  upon  the  only 
question  argued  by  counsel,  touching  the  effect  of  the  colonial  act,  but 
we  are  not  to  be  understood  as  thereby  intimating  any  opinion  that  the 
plea  might  not  be  sustained  upon  more  general  grounds  as  showing 
that  the  acts  complained  of  were  incident  to  the  enforcement  of  martial 
law.  It  is,  however,  unnecessary  to  discuss  this  further  question,  be- 
cause we  are  of  opinion  with  the  court  below^hat  the  colonial  Act  of 
Inderanit}',  even  upon  the  assumption  that  the  acts  complained  of  were 
originally  actionable,  furnishes  an  answer  to  the  action^ 

The  judgment  of  the  Court  of  Queen's  Bench  for  the  defendant  was 
right,  and  is  affirmed.  Judgment  affirmed. 


MACHADO  r.  FONTES. 

Court  of  Appp:al.     1S97. 

[Reported  [1897]  2  Queen's  Bench,  231.] 

Appeal  from  Kennedy,  J.,  at  chambers. 

The  plaintiff  brought  this  action  to  recover  damages  from  the  de- 
fendant for  an  alleged  libel  upon  the  plaintiff'  contained  in  a  pamphlet 
in  the  Portuguese  language  alleged  to  have  been  published  by  the  de- 
fendant in  r>razil. 

The  (lef(!ndant  delivered  a  statement  of  defence  (in  which,  amongst 
other  defences,  he  denied  the  alleged  libel),  and  he  afterwards  took 
out  a  summons  for  leave  to  amend  his  defence  by  adding  the  following 
plea:  "Further  the  defendant  will  contend  that  if  (contrary  to  the 
defendant's  contention)  the  said  pamphlet  has  boiMi  published  in  Brazil, 
by  the  Brazilian  law  the  publication  of  the  said  pamphlet  in  Brazil 


CHAP.  IX.]  MACHADO    V.   FONTES.  425 

cannot  be  the  ground  of  legal  proceedings  against  the  defendant  in 
Brazil  in  which  damages  can  be  recovered,  or  (alternativelj-)  cannot  be 
the  ground  of  legal  proceedings  against  the  defendant  in  Brazil  in 
which  the  plaintift'  can  recover  general  damages  for  anv  injury  to  his 
credit,  character,  or  feelings." 

The  summons  came  before  Kennedy,  J.,  in  chambers,  who  allowed 
the  plea  to  be  added,  but  expressed  some  doubt  as  to  the  propriety  of 
so  doing,  and  gave  leave  to  plaintiff  to  bring  the  present  appeal.^ 

Lopes,  L.  J.  I  am  of  opinion  that  this  appeal  ought  to  be  allowed. 
[The  Lord  Justice  then  referred  to  the  facts,  and,  after  reading  the 
plea,  continued  :] 

Now  that  plea,  as  it  stands,  appears  to  me  merely  to  go  to  the 
remedy.  It  saj-s,  in  effect,  that  in  this  case  no  action  in  which  dam- 
ages could  be  recovered  would  lie  in  Brazil,  and,  assuming  that  any 
damages  could  be  recovered  in  Brazil,  they  would  be  special  damages 
only.  Mr.  Walton  contends  that  that  is  not  the  meaning  of  the  plea ; 
that  the  _plea  is  intended  to  raise  a  larger  question  than  that,  and  to 
say  that  libel  cannot  be  made  the  subject  of  any  civil  proceedings  at  all 
in  Brazil,  but  is  only  the  subject-matter  of  criminal  proceedings  ;  and, 
for  the  purposes  of  what  I  am  about  to  say,  I  will  assume  that  to 
be  so. 

Now  the  principle  applicable  in  the  present  case  appears  to  me  to  be 
this  :  where  the  words  have  been  published  outside  the  jurisdiction, 
then,  in  order  to  maintain  an  action  here  on  the  gi-ound  of  a  tort  com- 
mitted outside  the  jurisdiction,  the  act  complained  of  must  be  wrongful 
—  I  use  the  word  "wrongful"  deliberately  —  both  by  the  law  of  this 
country  and  also  by  the  law  of  the  country  where  it  was  committed  ; 
and  the  first  thing  we  have  to  consider  is  whether  those  conditions  are 
complied  with. 

In  the  case  of  Phillips  v.  Eyre,  L.  R.  6  Q.  B.  1,  Willes,  J.,  lays  down 
very  distinctly  what  the  requisites  are  in  order  to  found  such  an  action. 
He  says  this  (at  p.  28)  :  "  As  a  general  rule,  in  order  to  found  a  suit 
in  England  for  a  wrong  alleged  to  have  been  committed  abroad,  two 
conditions  must  be  fulfilled :  First,  the  wrong  must  be  of  such  a  char- 
acter that  it  would  have  been  actionable  if  committed  in  England.  .  .  . 
Secondly,  the  act  must  not  have  been  justifiable  by  the  law  of  the  place 
where  it  was  dont."  Then  in  The  M.  Moxham,  1  P.  D.  107,  James, 
L.  J.,  in  the  course  of  his  judgment,  uses  these  words  (at  p.  Ill)  :  "  It 
is  settled  that  if  by  the  law  of  the  foreign  country  the  act  is  lawful  or 
is  excusable,  or  even  if  it  has  been  legitimized  by  a  subsequent  act  of 
the  Legislature,  then  this  court  will  take  into  consideration  that  state 
of  the  law,  —  that  is  to  say,  if  liy  the  law  of  the  foreign  country  a  par- 
ticular person  is  justified,  or  is  excused,  or  has  been  justified  or  excused 
for  the  thing  done,  he  will  not  be  answerable  here." 

Both  those  cases  seem  to  me  to  go  this  length  :  that,  in  order  to 
constitute  a  good  defence  to  an  action  brought  in  this  country  in  re- 

1  Arffuments  of  counsel  are  omitted.  —  Ed. 


42G  MACHADO    {'.    FONTKS.  fCHAP.  IX. 

spect  of  an  act  done  in  a  foreign  country,  the  act  relied  on  must  be 
one  which  is  innocent  in  the  country  wliere  it  was  committed.  In  the 
present  case  there  can  be  no  doubt  tliat  tlie  action  lies,  for  it  comphes 
with  both  of  tlie  requirements  which  are  hiid  down  b}-  Willes,  J.  Tlie 
aet  was  committed  abroad,  and  was  actionable  liere,  and  not  justifiable 
l)y  the  law  of  the  i)lace  where  it  was  committed.  Both  those  conditions 
are  complied  with  ;  and,  therefore,  the  publication  in  Brazil  is  action- 
able hero. 

It  then  follows,  directly  the  right  of  action  is  established  in  this 
country,  that  the  ordinary  incidents  of  that  action  and  the  appropriate 
remedies  ensue. 

Therefore,  in  this  case,  in  mj'  opinion,  damages  would  (low  from  the 
wrong  connuitted  just  as  they  would  in  any  action  brought  in  respect 
of  a  libel  published  in  this  country. 

It  is  contended  that  it  would  be  much  better  that  this  question 
should  not  be  decided  at  the  present  time,  but  that  a  commission 
should  go  to  Brazil,  and  that  the  Brazilian  law  should  be  inquired  into. 
If  our  viev/  is  correct,  it  seems  to  me  that  that  would  be  a  great  waste 
of  time  and  money,  because,  having  regard  to  the  authorities  I  have 
mentioned,  this  plea  is  absolutely  bad,  and  ought  to  be  struck  out. 

KuiHY,  L.  J.  I  am  of  the  same  opinion.  I  do  not  propose  to  de- 
cide this  case  on  any  technical  consideration  as  to  what  may  be  the 
precise  meaning  of  the  allegation  that  is  proi)osed  to  be  introduced 
into  the  defence  ;  I  give  it  the  widest  possible  construction  it  can  rea- 
sonably bear;  and  1  will  assume  it  to  involve  that  no  action  for  dam- 
ages, or  even  no  civil  ai-tion  at  all,  can  be  maintained  in  Brazil  in 
respect  of  a  libel  pul)lishcd  there.  But  it  does  not  follow  from  that 
that  the  libel  is  not  actionable  in  this  country  under  the  present  con- 
ditions, and  having  regaril  to  the  fact  that  the  plaintiff  and  defendant 
are  here. 

Willes,  J.,  in  Phillips  v.  Eyre,  was  laying  down  a  rule  which  he  ex- 
pressed without  the  slightest  modification,  and  without  the  slightest 
doubt  as  to  its  correctness  ;  and  when  you  consider  the  care  with 
wiiich  the  learned  Judge  prepared  the  propositions  that  he  was  about 
to  enuirciate,  I  cannot  doubt  that  the  change  from  "actionable"  in 
the  first  branch  oi'  the  rule  to  "justifiable"  in  the  second  branch 
of  it  was  deliberate.  The  first  requisite  is  that  the  wrong  must  bo 
of  such  a  character  that  it  would  be  actionable  in  England.  It  was 
long  ago  settled  that  an  action  will  lie  by  a  plaintilf  hero  against  a  de- 
feiulant  hero,  upon  a  transaction  in  a  place  outside  this  country.  But 
though  such  action  may  be  brought  here,  it  does  not  follow  that  it  will 
succeed  here,  for,  when  it  is  committed  in  a  foreign  country,  it  may 
turn  out  to  be  a  perfectly  innocent  act  according  to  tiie  law  of  tliat 
country;  and  if  the  act  is  shown  by  the  law  of  that  country  to  bo  an 
innocent  act,  wc  pa}*  such  respect  to  the  law  of  other  countries  that  we 
will  not  allow  an  action  to  be  brought  upon  it  here.  Tlie  innocency  oF 
the  act  in  tlie  foreign  countrv  is  an  answer  to  the  action.    That  is  what 


CHAP.  IX.]  MACHAUO   V.   FONTES.  427 

is  im-ant  wb.cn  it  is  said  that  the  act  must  be  •*  justifiable  "  by  the  law 
of  the  plate  where  it  was  done. 

It  is  nut  reall}-  a  matter  of  an}-  importance  wliat  the  nature  of  the 
remedy  for  a  wrong  in  a  foreign  country  may  be. 

The  remedy  must  be  according  to  the  law  of  the  country  which  en- 
tertains the  action.  Of  course,  the  plea  means  that  no  action  can  be 
brought  in  this  country  in  respect  of  the  libel  (if  any)  in  Brazil.  But  I 
think  the  rule  is  clear.  It  was  very  carefully  laid  down  by  Willes,  J., 
in  Phillips  ii.  Eyre;  and  in  the  case  of  The  M.  jNIoxham,  all  the  learned 
judges  of  the  Court  of  Appeal  in  their  judgments  laid  down  the  law 
without  hesitation  and  in  a  uniform  manner :  and  first  one  judge  and 
then  another  gave,  in  different  language  but  exactly  to  the  same  pur- 
port and  effect,  the  rule  enunciated  by  Willes,  J.  So  that  if  authority 
were  wanting  there  is  a  decision  clearly  binding  upon  us,  although  I 
think  the  principle  is  sufficient  to  decide  the  case. 

I  think  there  is  no  doubt  at  all  that  an  action  for  a  libel  published 
abroad  is  maintainable  here,  unless  it  can  be  shown  to  be  justified  or 
excused  in  the  country  where  it  was  published.  James,  L.  J.,  states,  in 
The  M.  Moxham,  what  the  settled  law  is.  Mellish,  L.  J.,  is  quite  as 
clear  upon  that  point  as  James,  L.  J.,  in  laying  down  the  general 
rule;  and  Baggallay,  L.  J.,  also  takes  the  same  view.  We  start, 
then,  from  this  :  that  the  act  in  question  is  prima  facie  actionable 
here,  and  the  only  thing  we  have  to  do  is  to  see  whether  there  is 
any  peremptory  bar  to  our  jin-isdiction  arising  from  the  fact  that  the 
act  we  are  dealing  with  is  authorized,  or  innocent  or  excusable,  in  the 
country  where  it  was  committed.  If  we  cannot  see  that,  we  must  act 
according  to  our  own  rules  in  the  damages  (if  any)  which  we  may 
choose  to  give.  Here  w^e  cannot  see  it,  and  this  appeal  must  be  allowed 
with  costs.  Appeal  allowed.'^ 

1  In  Scott  V.  Seymour,  1  H.  &  C.  219,  234,  in  the  Exchequer  Chamber,  Wight- i 
MAN,  J.,  said  obiter :  "  I  am  not  aware  of  any  rule  of  law  which  would  disable  a  Brit-  j 
ish  subject  from  maintaining  an  action  in  this  country  for  damages  against  another 
British  subject  for  an  assault  and  battery  committed  by  him  in  a  foreign  country, 
merely  because  no  damages  for  such  trespasses  were  recoverable  by  the  law  of  the 
foreign  country,  and  without  any  allegation  that  such  trespasses  were  lawful  or  justi- 
fiable in  that  country.  By  the  law  of  England,  an  action  to  recover  damages  for  an 
assault  and  battery  is  transitory,  and  whatever  might  be  the  case  as  between  two  Nea- 
politan subjects,  or  between  a  Neapolitan  and  an  Englishman,  I  find  no  autliority  for 
holding  that,  even  if  the  Neapolitan  law  gives  no  remedy  for  an  assault  and  battery, 
however  violent  and  unprovoked,  by  recovery  of  damages,  that  tlierefore  a  British 
subject  is  deprived  of  his  right  to  damages  given  by  the  Pmglish  law  against  another 
British  subject."  Blackburn,  J.,  said  :  "  If,  indeed,  the  plea  had  averred  that  by  the 
law  of  Naples  no  damages  are  recoverable  for  an  assault  however  violent,  that  would 
have  raised  a  question  upon  which  I  have  not  at  present  made  up  my  mind.  I  doubt 
whether  it  would  be  a  good  bar  but,  supposing  it  would,  I  am  disposed  to  think  that 
the  fact  of  the  parties  being  British  subjects  would  make  no  difference.  As  at  present 
advised,  I  think  that  when  two  British  subjects  go  into  a  foreign  country,  they  owe  local 
allegiance  to  tlie  law  of  that  country,  and  are  as  much  governed  by  that  law  as  for- 
eigners." Williams,  .1.,  said,  as  to  the  dictum  of  Wightman,  "  as  at  present  advised, 
I  am  not  prepared  to  assent  to  it."  The  other  judges  declined  to  express  an  opinion 
on  the  point.  —  Ed. 


428 


LE   FOREST  V.   TOLMAN. 


[chap.  IX. 


LE  FOREST  v.  TOLMAN. 

Supreme  Judicial  Court  of  Massachusetts.     1875. 

[Reported,  117  Massachusetts,  109.] 

Gray,  C.J.     In  order  tojnaiatain-au  aetioii  xt£  tort,  fomukd-upon 
an  injur}-  to  persoii_Qrj2ro[>erty,  and  not  upona  breach  of  contract,  tEe, 


action 


ict  whieti  is  the  cause  of  the  inju 

faL^lt^at  least  be _actioTnrtjg-T7r--p 

\^TCfa-Trrs"^ne7if  not  also"Bx_tbeJaw  of  the  ^4ftee4n  wJikJi  redress  is 
soiigTitr 'Smith  y.Condr}-,  1  How.  28  ;  s.  c.  17  Pet.  20;  The  China, 
7  "\ValI.  53,  64  ;  Blad's  Case,  3  Swanst.  603  ;  Blad  v.  Bamfield,  3  Swanst. 
604  ;  General  Steam  Navigation  Co.  v.  Guillou,  11  M.  &  W.  877  ;  Phillips 
V.  Eyre,  L.  R.  4  Q.  B.  225,  239,  and  L.  R.  6  Q.  B.  1  ;  The  Halley,  L.  R. 
2  Ad m.  3,  and  L.  R.  2  P.  C.  193  ;  Stout  v.  Wood,  1  Blackf.  71  ;  Wall 
V.  Hoskins,  5  Ired.  177;  Mahler  v.  Norwich  &  New  York  Transporta- 
tion Co.,  35  N.  Y.  352  ;  Needham  v.  Grand  Trunk  Railway,  38  Vt. 
294 ;  Richardson  r.  New  York  Central  Railroad,  98  Mass.  85. 

In  the  case  at  bar,  the  injury  sued  for  was  done  to  the  plaintiff  in 
New  Hampshire  by  a  dog  owned  and  kept  by  the  defendant  in  Massa- 
chusetts. Such  an  action  could  not  be  maintained  at  common  law, 
witliout  proof  that  the  defendant  knew  that  his  dog  was  accustomed  to 
attack  and  bite  mankind.  Popplewell  v.  Pierce,  10  Cush.  509  ;  Pressed 
V.  Wirth,  3  Allen,  191.  No  evidence  of  such  knowledge,  or  of  the  law 
of  New  Hampshire,  was  introduced  at  the  trial.  Nor  is  it  contended 
that  the  defendant  would  be  liable  to  any  action  or  indictment  by  the 
laws  of  that  State. 

The  plaintiff  relies  upon  the  statute  of  this  Commonwealth,  which 
provides  that  "  every  owner  or  keeper  of  a  dog  shall  forfeit  to  any 
person  injured  by  it  double  the  amount  of  the  damage  sustained  by 
him,  to  be  recovered  in  an  action  of  tort."  Gen.  Sts.  c.  88,  §  59.  This 
statute  is  not  a  penal,  but  a  remedial  statute,  giving  all  the  damages  to 
the  person  injured.  Mitchell  v.  Clapp,  12  Cush.  278.  It  does  not  de- 
clare the  owning  or  keeping  of  a  dog  to  be  unlawful,  but  that  if  the  dog 
injures  another  person,  the  owner  or  keeper  shall  be  liable,  without 
regard  to  the  question  whether  he  had  or  had  not  a  license  to  keep  the 
dog.  The  wrong  done  to  the  person  injured  consists  not  in  the  act  of 
the  master  in  owning  or  keeping,  or  neglecting  to  restrain,  the  dog,  but 
in  the  act  of  the  dog  for  which  the  master  is  responsible. 

The  defendant  having  done  no  wrongful  act  in  this  Commonwealth, 
and  the  injury  for  which  the  plaintiff  seeks  to  recover  damages  having 
taken  place  in  New  Hampshire,  and  not  being  the  subject  of  action  or 
indictment  by  the  laws  of  that  State,  this  action  cannot  be  maintained. 

Exceptions  sustained.^ 

1  Arc.  The  Laininc:ton,  87  Fed.  752  ;  Carter  v.  Goode,  .50  Ark.  15.5,  6  S.  W.  719  ; 
"Whitford  v.  Panama  \i  !{.,  23  N.  Y.  405  ;  Holland  i-.  Pack,  Peck,  151 ;  McLeodv.  B.  R, 
58  Vt.  727  ;  16  Cluuet,  664  (Freuch  Cass.  16  May,  '88).  —  Ed. 


CHAl'.  IX.]        DAVIS  V.  NEW  YORK  AND  NEW  ENGLAND  RAILROAD       429 


DAVIS  V.   NEW  YORK  AND  NEW  ENGLAND  RAILROAD. 

Supreme  Judicial  Court  of  Massachusetts.     1887. 
[Reported  143  Massachusetts,  301.] 

Devens,  J.  The  defendant  is  a  railroad  corporation,  operating  a 
railroad  through  Massachusetts  and  Connecticut,  as  a  continuous  line, 
by  virtue  of  the  St.  of  1873,  c.  289,  and  exists  as  a  corporation  by  the 
laws  of  each  of  these  States.  This  action  is  brought  by  the  plaintiff,  as 
administrator  of  the  estate  of  Mrs.  Ruth  L.  Brown,  for  alleged  injury  to 
her,  which  finally  resulted  in  her  death,  by  reason  of  the  carelessness 
of  the  defendant  and  that  of  its  servants,  while  she  was  being  convej-ed 
as  a  passenger  over  its  railroad  in  Connecticut,  the  intestate  being 
herself  at  the  time  in  the  exercise  of  due  care. 

The  law  of  the  State  of  Connecticut  has  been  properly  determined  as 
a  fact  b}'  the  judge  presiding  at  the  trial,  and  his  finding  in  regard  to  it 
is  conclusive.  Ames  r.  McCamber,  124  ^lass.  85,  91.  From  tliis  it 
appears  "  that,  by  the  common  law  in  Connecticut,  an  action  for 
personal  injuries  does  not  survive  to  the  administrator  of  the  person 
injured  ;  that  there  is  no  statute  or  law  in  Connecticut  b}-  virtue  of 
which  a  common-law  action  for  personal  injuries  is  revived,  or  made  to 
survive  to  an  administrator  of  tiie  person  injured."  The  facts,  as  they 
are  alleged,  "  do  not  constitute  a  cause  of  action  under  the  laws  of  the 
State  of  Connecticut  b}-  the  administrator  in  behalf  of  the  intestate's 
estate,  and  this  aiction  could  not  be  maintained  in  that  State,  if  duly 
brought  by  an  administrator  there."  The  administrator  may  there 
maintain,  upon  these  facts,  a  special  action,  penal  in  its  nature,  created 
by  the  statutes  of  Connecticut,  by  which  the  damages  recoverable  are 
limited  to  not  more  than  $5,000,  and  under  which  the  damages  recovered 
do  not  become  assets  of  the  estate,  but  are  recovered  in  behalf  of 
certain  persons  not  thus  entitled  to  the  same  according  to  the  laws  of 
distribution,  and  are  to  be  paid  over  in  specified  proportions  to  them. 

The  plaintiff  does  not  contend  that  he  mav  maintain  this  action  as 
the  special  one  provided  b}'  the  statute  of  Connecticut,  nor  under  the 
laws  of  that  State.  Richardson  v.  New  York  Central  Railroad,  98 
jMass.  85.  We  are  aware  that  the  correctness  of  this  decision  has  been 
called  in  question  by  the  Supreme  Court  of  the  United  States  in  Dennick 
V.  Railroad,  103  U.  S.  11  ;  but  it  is  unnecessary  to  reconsider  our  own 
decision,  as  the  plaintiff  seeks  only  to  maintain  liis  action  under  our 
statute,  which  provides  that,  in  case  of  damage  to  the  person,  the  action 
shall  survive,  and  may  thus  be  prosecuted  bv  an  administrator.  Pub. 
Sts.  c.  165,  §  1  ;  Hollenbeck  r.  Berkshire  Railroad,  9  Cush.  478.  The 
inquir}'  is  therefore  presented,  whether  a  cause  of  action  at  common 
law,  which  dies  with  the  person  in  the  State  where  it  accrued,  not  having 
boon  made  there  to  survive  by  any  statute,  will  survive  under  and  by 


430      DAVIS  V.  NEW  YORK  AND  NEW  ENGLAND  KAILROAD.       [CKAP.  IX, 

virtue  of  the  statutes  of  survivorship  of  another  State,  so  that,  if  juris- 
diction is  there  obtained  over  the  person  or  propertj'  of  the  defendant, 
judgment  may  properly  be  rendered  against  him  or  his  property.  That 
our  statute  would  furnish  a  remedy,  where  the  cause  of  action  was  one 
recognized  by  the  law  of  this  State  as  the  foundation  of  an  action  at 
common  law,  although  it  accrued  without  the  State,  it  being  there  recog- 
nized as  existing,  and  not  discharged  or  extinguished,  will  be  conceded. 
It  must  certainl}-  be  the  right  of  each  State  to  determine  by  its  laws 
under  what  circumstances  an  injury  to  the  person  will  afford  a  cause  of 
action.  If  this  is  not  so,  a  person  who  is  not  a  citizen  of  the  State,  or 
who  resorts  to  another  State  for  his  remed}',  if  jurisdiction  can  be 
obtained,  ma}'  subject  the  defendant  in  an  action  of  tort  to  entirely 
different  rules  and  liabilities  from  those  which  would  control  the  con- 
troversy were  it  carried  on  where  the  injury  occurred  ;  and,  as  b\'  the 
law  of  Massachusetts  it  is  required  that  a  person  injured  while  travel- 
ling upon  a  railroad  must  prove,  not  onl}-  the  negligence  of  the  defend- 
ant, but  also  that  he  himself  was  in  the  exercise  of  due  care,  and  as 
jurisdiction  may  be  obtained  by  an  attachment  of  property  of  the 
defendant  in  another  State,  the  plaintiff"  might  relieve  himself  of  the 
necessity  of  proving  his  own  due  care,  if,  b}'  the  law  of  the  State  to 
which  he  may  resort,  such  proof  is  not  required,  and  thus  put  upon  the 
railroad  company  a  higher  responsibility  than  is  imposed  by  the  State 
in  which  it  was  performing  its  business.  In  a  similar  way,  if  a  traveller 
upon  a  steam  or  horse  railroad  could  not  recover  in  this  State  for  an 
injur}'  done  by  carelessness  in  transporting  him,  because  he  was 
travelling  upon  Sunday,  in  violation  of  the  laws  of  the  State,  he  might, 
unless  the  law  prescribed  in  this  State  is  to  govern,  recover  in  any 
State  where  laws  forbidding  travelling  on  Sunday  did  not  exist,  if  juris- 
diction could  there  be  obtained  over  the  defendant  or  its  property. 
(  Where  an  injur}'  occurs  in  another  State,  which  would  be  the  founda- 
tion of  an  action  at  common  law,  and  it  is  known  that  the  general  law 
of  that  State  is  the  common  law,  it  may  be  inferred  that  the  ti'ansaetion 
is  governed  by  its  rules  as  here  applied,  in  the  absence  of  evidence  to 
the  contrary;  but,  when  it  is  shown  to  be  otherwise,  the  law  of  the 
State  where  the  injury  occurs  is  to  be  regarded.  j[t  is  a  general  prin- 
ciple, that,  in  order  to  maintain  an  action  of  tort  founded  upon  an 
injury  to  person  and  property,  the  act  wliich  is  the  cause  of  the  injury 
and  the  foundation  of  the  action  must  at  least  be  actionable  by  the 
law  of  the  place  where  it  is  done,  if  not  also  by  that  of  the  place  in 
which  redress  is  sought."^  Le  Forest  '-.  Tolman,  117  Mass.  109.  and 
cases  cited.  It  must  be  for  the  State  of  Connecticut  to  prescribe  when, 
and  under  what  circumstances,  a  cause  of  action  shall  arise  against  a 
corporation  which  operates  a  railway  within  its  limits,  by  reason  of  an 
act  done  by  it.  It  may  provide  that,  for  an  injury  done  by  its  careless- 
ness, there  shall  be  no  cause  of  action  on  behalf  of  the  injured  party, 
but  punisliment  by  indictment  only,  or  it  may  give  to  such  injured 
person  a  cause  of  action,  and  for  the  same  injury  make  the  corporation 


CHAP.  IX.]       DAVIS  V.  NEW  YORK  AND  NEW  ENGLAND  RAILROAD.       431 

responsible,  by  indictment  or  other  proceeding,  for  a  fine  or  damages 
wliich  shall  go  to  the  State,  to  relatives  of  the  injured  party,  or  to  any 
other  persons  named.  Commonwealth  v.  Metropolitan  Railroad,  107 
Mass.  236. 

^The  intestate  did,  by  the  common  law  of  Connecticut,  have  a  right 
of  action  during  her  lifetime,  but  for  this  has  been  substituted  in  that 
State,  she  having  deceased,  the  penal  action  created  by  the  statute^ 

It  is  the  contention  of  the  plaintiff,  that  the  cause  of  action  may  be 
held  to  survive  by  virtue  of  our  statute,  notwithstanding  no  cause  of 
action  now  exists  in  Connecticut.  Pub.  Sts.  c.  165,  §  1.  That  the 
special  action  in  Connecticut  can  now  be  maintained  is  not  controverted. 
If,  therefore,  this  contention  of  the  plaintiff  is  correct,  the  defendant 
continues  liable  for  its  act  or  neglect  in  Connecticut  by  the  law  of 
Massachusetts,  while  it  is  also  liable  by  reason  of  the  penalty  imposed 
upon  it  by  the  law  of  Connecticut  as  a  substitute  for  its  original  lia- 
bility, such  penalty  being  still  capable  of  enforcement,  ^^he  design  of 
our  statutes  of  survivorship  is  primarily  to  provide  for  survival  of 
those  actions  of  tort  the  causes  of  which  occur  in  this  State.*  If  similar 
statutes  existed  in  another  State,  where  the  original  cause  of  action 
accrued,  it  would  not  be  difficult  to  hold  that  our  own  applied  to  such 
causes,  upon  the  same  principle  by  which  we  hold  that  the  intestate 
herself  might  originally  have  brought  her  action  here.  When  no  such 
cause  of  action  now  exists  in  the  State  where  the  injury  occurred,  it  is 
not  easy  to  see  how  it  can  exist  here,  especially  when,  in  such  State, 
another  cause  of  action,  growing  out  of  the  same  facts,  has  been 
substituted  for  it.  This  would  be  to  subject  the  defendant  to  two 
liabilities,  one  existing  by  the  law  of  the  State  in  which  jurisdiction 
over  person  or  property  was  obtained,  but  in  which  the  accident  did  not 
occur ;  and  the  other  imposed  by  the  law  of  the  State  where  it  did 
occur,  and  where  the  defendant  had  its  residence  ;  while  in  either  State 
the  liability  there  imposed  would  be  the  only  one  to  which  the  defendant 
could  by  its  law  be  subjected. 

It  may  be  suggested,  that  the  law  of  Connecticut,  in  failing  to  pro- 
vide that  an  action  for  a  personal  injury  shall  survive  to  the  adminis- 
trator, has,  negativel}',  only  the  same  effect  as  a  statute  of  limitations, 
which  operates  merely  to  take  away  the  remedy  of  a  plaintiff,  while  his 
cause  of  action  still  exists. 

By  the  ancient  common  law,  as  it  existed  before  the  St.  of  4  Edw. 
III.  c.  7,  which  was  adopted  and  practised  on  in  this  State  before  the 
Constitution,  6  Dane  Abr.  607,  no  action  ex  delicto  survived  to  the 
personal  representative,  the  maxim  Actio  personalis  moritur  oan 
•persona  being  of  universal  appUcation.  Wilbur  v.  Gilmore,  21  Pick. 
250.  Subsequently  to  that  statute,  which  was  liberally  construed,  an 
action  for  a  tort,  by  which  the  personal  property  of  one  was  injured  or 
destroyed,  survived  to  his  administrator,  such  tort  being  an  injury  to 
the  property  which  otherwise  would  have  descended  to  him.  But  the 
theory  that  a  personal  injury  to  an  individual  was  limited  to  him  onh', 


432        DAVIS  v.  NEW  YORK  AND  NEW  ENGLAND  RAILROAD.       [CHAP.  IX. 

that  no  one  else  suffered  thereby,  and  that  therefore  by  his  decease  the 
cause  of  action  itself  ceased  to  exist,  continued. 

While  the  action  for  personal  injury  is  spoken  of  as  surviving,  as 
there  previously  was  no  responsibility  to  the  estate,  the  statute  creates 
a  new  cause  of  action.  It  imposes  a  new  liabilit}',  and  does  not  merely 
remove  a  bar  to  a  remed}'  such  as  is  interposed  by  the  statute  of  limi 
tations,  which,  if  withdrawn  b}'  the  repeal  of  the  statute,  would  allow 
an  action  to  be  maintained  for  the  original  cause.  What  the  new 
liabilit}-  shall  be,  by  what  conditions  it  shall  be  controlled,  and  whether 
the  original  liability  shall  be  destro^xd,  must  be  determined  bj-  the  law 
of  the  State  where  the  injury  occurs,  unless  the  legislation  of  other 
States  is  to  have  extraterritorial  force,  and  govern  transactions 
beyond  their  limits.  We  perceive  no  intention  to  invest  it  with  such 
force,  even  if  it  were  possible  so  to  do. 

B3'  the  decease  of  the  intestate,  the  cause  of  action  at  common  law 
which  she  once  had  in  Connecticut  has  there  ceased  to  exist.  (It  is 
for  that  State  to  determine  what  provision,  b}-  action  or  indictment, 
if  an}-,  shall  be  made  in  order  to  indemnify  the  estate  of  the  intestate,^ 
or  her  relatives,  or  to  punish  the  party  causing  the  injury  to  her.  Our 
statute,  permitting  the  survival  of  similar  actions  in  this  State,  does 
not  therefore  applj'. 

The  question  considered  in  the  case  at  bar  was  full}'  and  ably  dis- 
cussed in  Needham  v.  Grand  Trunk  Railway,  38  Vt.  294,  and  the  same 
result  reached  as  that  at  which  we  have  arrived.  To  the  same  effect 
also  is  State  /'.  Pittsburgh  &  Connellsville  Railroad,  45  Md.  41. 

The  plaintiff,  in  his  argument,  attaches  importance  to  the  St.  of  1873, 
c.  289,  by  virtue  of  which  the  defendant's  railroad  is  operated  in  the 
several  States  through  which  it  runs  as  a  continuous  line  ;  but  the  fact 
that  it  is  a  corporation  b}'  the  law  of  Massachusetts  as  well  as  by  that 
of  Connecticut  cannot  make  its  liabilities  different  or  greater  in  this 
State  on  account  of  transactions  occurring  entirely  in  Connecticut ;  nor 
are  the  rights  of  the  plaintiff  greater  because  his  intestate,  who  was 
injured  in  tliis  transaction,  was  a  citizen  of  this  Commonwealth. 
Whitford  v.  Panama  Railroad,  23  N.  Y.  465,  472  ;  Richardson  v.  New 
York  Central  Railroad,  ubi  supra. 

The  ruling  that  the  action  could  be  maintained  was  therefore 
erroneous.  Except  ions  snstaiiifd} 

1  Ace.  Davidow  ?•.  PiMinsylvaiiia  R.  K.,  85  Fed  943  :  Do  [lam  v.  Mex.  Nat.  Ky.,  86 
Tex.  68,  23  S.  W.  381 ;  Needham  v.  li.  li.,  38  Vt.  294.  —  Eu. 


CHAP.  IX.j        NORTHERN   PACIFIC   KAILROAD   V.   BABCOCK, 


433 


NORTHERN   PACIFIC   RAILROAD    v.   BABCOCK. 

Supreme  Court  of  the  United  States.     1894. 

[Reported  154  United  States,  190.] 

The  plaintiff  below,  who  was  the  administrator  of  the  estate  of  Hugh 
M.  Munro,  sued  in  the  District  Court  of  the  Fourth  Judicial  District  of 
Minnesotato  recover  $25,000  damages  for  the  killing  of  Munro  on  tte 
lOth  day  of  Januar}',  1888,  at  or  near  a  station  known  as  Gray  Cliff  on 
the  Northern  Pacific  Railway  in  the  Territory-  of  Montana. 

There  was  a  verdict  and  judgment  below  in  favor  of  the  plaintiff  for 
$10,000.  To  review  that  judgment  this  writ  of  error  was  sued  out. 
The  errors  assigned  were  as  follows  : 

"Third.  The  court  erred  further  in  charging  the  jur\'as  follows: 
'  Many  States  have  different  laws.  The  law  in  this  State  until  recently 
was  that  only  $5,000  could  be  given  in  a  case  of  death.  It  has  lately 
been  increased  to  $10,000.' 

''Fourth.  The  court  erred  further  in  charging  the  jury  as  follows: 
'  If  you  believe  from  all  the  evidence  in  the  case  that  the  plaintiff  is 
entitled  to  recover,  then  it  is  for  you  to  determine  what  compensation 
you  will  give  for  the  death  of  the  plaintiffs  intestate.  The  law  of 
Montana  limits  it  to  such  an  amount  as  you  think  it  would  be  proper 
under  all  circumstances  of  the  case,  and  that  is  the  law  which  will 
govern  in  this  case.' 

"  Sixth.  The  court  erred  further  in  refusing  to  give  to  the  jury  the 
following  request  tendered  by  defendant's  counsel :  '  The  laws  of  Min- 
nesota limit  the  amount  of  damages  to  be  recovered  in  this  case  to  five 
thousand  dollars.'  "  ^ 

White,  J.  The  third,  fourth,  and  sixth  assignments  involve  the 
same  question,  and  may  be  decided  upon  together. 

^  Only  so  much  of  the  case  as  deals  with  these  assignments  of  error  is  given.  —  Ed. 


28 


434-  NORTHERN    PACIFIC    RAILROAD    V.    BABCOCK.        [CHAP.  IX. 

The  plaintitTs  intestate  was  an  engineer  in  the  employ  of  the  defend- 
ant corporation  in  the  Territor}'  of  Montana,  and  the  accident  b}-  which 
he  lost  his  life  occurred  there.  The  law  of  the  Territory  of  Montana 
at  the  time  provided  as  follows  : 

"  Where  the  death  of  a  person  not  being  a  minor  is  caused  by  the 
wrongful  act  or  neglect  of  another,  his  heirs  or  personal  representatives 
mav  maintain  an  action  for  damages  against  the  person  causing  the 
death,  or  if  such  person  be  employed  by  another  person  who  is  respon- 
sible for  his  action,  then  also  against  such  other  person.  In  every 
action  under  this  and  the  preceding  section  such  damages  may  be  given 
as  under  all  the  circumstances  of  the  case  may  be  just."  (Section  14, 
title  II.,  chapter  I.,  first  division  of  the  Code  of  Civil  Procedure  of  the 
Territory  of  Montana.) 

Under  the  law  of  Minnesota,  when  the  death  occurred,  the  limit  of 
recovery  in  case  of  death  was  $5,000,  but  at  the  time  of  the  trial  of  the 
case  in  the  court  below  this  limit  had  been  increased  to  810,000  by 
amendment  of  the  Minnesota  statutes. 

The  question  which  those  assignments  of  errors  present  is,  was  the 
amount  of  damage  to  be  controlled  by  the  law  of  the  place  of  employ-  1  ^ 
ment  and  where  the  accident  occurred,  or  by  the  law  of  the  forum  in 
which  the  suit  was  pending?  In  the  case  of  Herrick  v.  Minneapolis  & 
St.  Louis  Railway  Co.,  reported  in  31  Minnesota,  11,  which  involved 
the  question  of  whether  the  courts  of  Minnesota  would  enforce  and 
apply  to  a  suit  in  that  State  for  a  cause  of  action  originating  in  Iowa 
a  law  of  the  State  of  Iowa  making  railroad  corporations  liable  for 
damages  sustained  by  its  employees  in  consequence  of  the  neglect  of 
fellow-servants,  the  court  said: 

••  The  statute  of  another  State Jias.   of  course,  no  extraterritorial 

force,  but  rights  acquiTed  imcler  it  will  ul\v:iy>.  in  c(jinUy,  be  enforced, 

1f  not  against  the  public  policy  ofthe  laws  of  the  former.     Insuchcases 

the^law^of  the  place  where  the  righfwas  acquTredTor  the  liabilitxzgg. 

incurred,  v?ill  govern  as  to  the  right  of  action:  while  all  that  pertains 

merely  to  the  remedy  will  be  controTledb^  the  law  of  the  State  where 

_the  action  is  brought.     And  we  think  the  principle  is  the  samc^,  whether 

~the  right  of  action  be  ex  contractu  or  ex  delicto. 

'^  ''The  defendant  admits  the  general  rule  to  be  as  thus  stated,  but 
contends  that  as  to  statutory  actions  like  the  present,  it  is  subject  to 
the  qualification  that,  to  sustain  the  action,  the  law  of  the  forum  and 
the  law  of  the  place  where  the  right  of  action  accrued  must  concur  in 
holding  that  the  act  done  gives  a  right  of  action.  We  admit  that  some 
text-writers  —  notably,  Rorer  on  Interstate  Law  —  seem  to  lay  down 
this  rule,  but  the  authorities  cited  generally  fail  to  sustain  it. 

"  But  it  by  no  means  follows  that,  because  the  statute  of  one  State 
differs  from  the  law  of  another  State,  therefore  it  would  be  held  con- 
trary to  the  policy  of  the  laws  of  the  latter  State.  E:very  day  our 
courts  are  enforcing  rights  under  foreign  contracts  where  the  lex  loci 


CHAP.  IX.]  THE   "  HALLEY."  435 

contractus  and  the  lex  fori  are  altogether  different,  and  yet  we  construe 
these  contracts  and  enforce  i-ights  under  them  according  to  their  force 
and  effect  under  the  laws  of  the  State  where  made.  To  justify  a  court 
in  refusing  to  enforce  a  right  of  action  which  accrued  under  the  law  of 
another .^tate,  because  agajjist  the  policy  oj"  our  laws^,^  it  must  apj^ear 
that  it  is  against  good  morals  or  natural Justice,_oi-  that,  for  some  other 
sucli  reason,  tliu  enforcement  oL it  would  be  prejudicial  to  the^generat- 
inteiests  of  our  own  citizens.  If  the  State  of  Iowa  sees  fit  to  impose 
this  obligation  upon  those  o\:»erating  railroads  within  her  bounds,  and 
to  make  it  a  condition  of  the  employment  of  those  who  enter  their  ser- 
vice, we  see  nothing  in  such  a  law  repugnant  either  to  good  morals  or 
natural  justice,  or  prejudicial  to  the  interests  of  our  own  citizens."  J 

This  opinion  of  the  Supreme  Court  of  JMinnesota  is  in  accorTTwith 
the  rule  announced  by  Chief  Justice  Marshall  in  The  Antelope,  10 
Wheat,  66.  In  referring  to  that  case  in  Texas  &,  Pacific  Railway  v. 
Cox,  145  U.  S.  593,  the  court  said  :  "  the  courts  of  no  country  execute 
the  penal  laws  of  another.  But  we  have  held  that  that  rule  cannot  be 
invoked  as  applied  to  a  statute  of  this  kind,  which  merely  authorizes  a 
civil  action  to  recover  damages  for  a  civil  injury."  The  rule  thus  enun- 
ciated had  been  adopted  in  previous  cases,  and  has  since  been  approved 
bv  this  court.  Smith  v.  Condry,  1  How.  28  ;  The  China,  7  Wall.  53, 
64;  Dennick  v.  Railroad  Co.,  103  U.  S.  11  ;  The  Scotland,  105  U.  S. 
24,  29  ;  Huntington  v.  Attrill,  146  U.  S.  657,  670.  Indeed,  in  Texas 
&  Pacific  Railway  Co.  v.  Cox,  supra,  Mr.  Chief  Justice  Fuller,  speak- 
ing for  the  court,  said  :  "  The  question,  however,  is  one  of  general  law, 
and  we  regard  it  as  settled  in  Uennick  v.  Railroad  Co." 

The  contract  of  employment  was  made  in  Montana,  and  the  accident 
occurred  in  that  State,  while  the  suit  was  brought  in  Minnesota.  We 
think  there  was  no  error  in  holding  that  the  right  to  recover  was 
governed  b}'  the  lex  loci,  and  not  by  the  lex  fori. 


THE    "HALLEY." 

Judicial  Committee  of  the  Privy  Council.     1868. 
[Reported  Law  Reports,  2  Privy   Council,  193.] 

Selwtn,  L.  J.  This  is  an  appeal  from  an  order  by  the  judge  of  the 
High  Court  of  Admiralty,  dated  the  26th  of  November.  1867.  and  ad- 
mitting the  third  article  of  the  reply  filed  bj*  the  plaintiffs  in  the  court 
below,  who  are  the  present  respondents. 

The  cause  is  a  cause  of  damage  promoted  by  the  respondents  as 
owners  of  a  Norwegian  barque  called  the  "  Napoleon,"  against  a 
British  steamship  called  the  "  Halley,"  and  her  owners,  for  the  re- 
covery of  damages   occasioned  to   the   respondents   by  reason  of  a 


436  THE    "  HALLEY."  [CHAP.  IX. 

collision  which  took  place  on  the  8th  of  January,   1867,  in  Flushing 
Roads,  between  the   "  Napoleon  "  and  the  '^  Halley." 

In  their  petition  the  respondents  state  that  the  collision  was  caused 
by  the  negligent  and  improper  navigation  of  the  ''  Halley." 

The  appellants,  in  their  answer  to  that  petition,  state  that  the 
"Halley"  is  a  steamship  belonging  to  the  port  of  Liverpool,  and 
that  "  by  the  Belgian  or  Dutch  laws  which  prevail  in  and  over  the 
river  Scheldt,  and  to  which  the  said  river  is  subject,  from  the  place 
where  the  said  river  pilot  came  on  board  the  '  Halley,'  and  thence 
up  to  and  beyond  the  place  of  the  aforesaid  collision,  it  was  compulsory 
on  the  said  steamer  to  take  on  board  and  be  navigated  under  the  di- 
rection and  in  charge  of  a  pilot  duly  appointed  or  licensed  according  to 
the  said  laws  ;  and  it  was  by  virtue  of  such  laws  that  the  '  Halley ' 
was  compelled  to  take  on  board  and  to  be  given  in  charge,  and  until 
the  time  of  tlie  said  collision,  as  aforesaid,  to  remain  in  charge  of,  and 
did  take  on  board,  and  was  given  in  charge,  and  up  to  the  time  of  the 
said  collision  remained  in  charge  of  the  said  river  pilot,  who  was  duly 
appointed  or  licensed  according  to  the  said  laws,  and  whom  the  defend- 
ants or  their  agents  did  not  select  and  had  no  power  of  selecting ; " 
and  "  that  the  collision  was  not  caused  by  the  negligence,  default, 
want  of  skill,  or  improper  conduct  of  any  person  on  board  the  '  Halley,' 
except  the  said  river  pilot." 

In  reply  to  this  answer,  the  respondents  pleaded  the  following,  being 
the  third  article  in  their  reply:  ^'Rv  the  Belgian__or^  Dutch  laws  in^ 
force  at  the  time  and  place  of  the  said  collisjon,  the  owners  of  a  sTiip 
wlijph  has  done  damage  to  another  shipln^oUision,  are  liable  to  pay 
ancrmagegooct  to  €Ee7?WTgrrofTuch^astly^mentioned"~sTlip~^  ioss'es 
occasioned  to  them  by  reason  of  such  collision,  notwithstanding  that 
the  ship  which  has  done  such  damage  was,  at  the  time  of  the  doing 
thereof,  being  navigated  under  the  direction  and  in  charge  of  a  pilot 
duly  appointed  or  licensed  according  to  the  said  laws^and^  notwith- 
standing that  such  damage  was  solely  occasioned  b^-  the  negligence, 
default,  or  want  of  skill  of  "such  pTTot,  without  any  contributory  negli- 
gence on  the  parTofTHiT  master  or  crow  of  such  lastl^v  mentioned  shi[), 
and  notwithstandliTg^hatlrTvas  at  the  tirae-imd  4jUu:e  of  the  collision, 
by  the  said  laws,  compulsory  oii^uch  lastly  meiit-ionetV^hip-to  be  navi- 
gated under  the  direction  amfin  charge  pi  such  i>ii«t-;  and  the  defend-, 
ants,  the  owners  of  the  '  Halley,'  are  by  virtue^ the  said  laws,  liable 
to  pay  and  make  goodH:o  tfrej>laintiffsjill  losses- occasioned  to  tliem  by 
the  said  collision,  iverTiI^ the  statements  contained  in  the  eleventh 
article  of  the  said  answer  be  true." 

The  ai)pellants  liaving  moVecT  the  court  below  to  reject  the  third 
article  of  the  reply,  on  the  ground  that,  even  if  tlic  third  article  were 
true,  the  appellants  would  not  be  liable  in  the  Court  of  Admiralty  in 
Enirland,  the  learned  judge  of  that  court  has  made  the  order  now  under 
appeal,  by  wliich  he  has  refused  the  motion  of  the  appellants,  and  has 
sustained  the  third  article  of  the  reply. 


CHAP.  IX.]  THE    "HALLEY."  437 

The  claim  of  the  respondents  is  stated  by  the  learned  judge  to  be 
founded  upon  a  tort  committed  by  the  defendants  in  the  territory  of  a 
foreign  State,  and  we  are  not  called  upon  to  pronounce  any  opinion 
as  to  the  rights  which  the  respondents  might  have  obtained,  either 
against  the  appellants  as  the  owners  of  the  "  Halley,"  or  as  against 
the  ship,  if  the  respondents  had  instituted  proceedings  and  obtained 
a  judgment  in  the  foreign  court.  For  this  cause  is  a  cause  for  damage 
instituted  by  petition  in  the  High  Court  of  Admiralty  in  England  ;  and 
it  is  admitted  by  the  counsel  for  the  respondents  that  the  question  be- 
fore us  must  be  decided  upon  the  same  principles  as  would  be  applicable 
to  an  action  for  damages  for  the  collision  in  question  if  commenced  in 
the  Court  of  Queen's  Bench  or  Common  Pleas.  But  it  is  contended  on 
their  part,  and  has  been  held  by  the  learned  judge  in  the  court  below, 
that  the  respondents  are  entitled  to  plead  that  the  law  of  Belgium, 
within  whose  territorial  jurisdiction  the  collision  took  place,  renders 
the  owners  of  the  "  Halley,"  although  compelled  to  take  a  pilot  on 
board,  liable  to  make  reparation  for  the  injury  which  slie  has  done. 

Their  Lordships  agree  with  the  learned  judge  in  his  statement  of  the 
common  law  of  England,  with  respect  to  the  liability  of  the  owner  of  a 
vessel  for 'injuries  occasioned  by  the  unskilful  navigation  of  his  vessel, 
while  under  the  control  of  a  pilot,  whom  the  owner  was  compelled  to 
take  on  board,  and  in  whose  selection  he  had  no  voice  ;  and  that  this 
law  holds  that  the  responsibility  of  the  owner  for  the  acts  of  his  servant 
is  founded  upon  the  presumption  that  the  owner  chooses  his  servant 
and  gives  him  orders  which  he  is  bound  to  obey,  and  that  the  acts  of 
the  servant,  so  far  as  the  interests  of  third  persons  are  concerned,  must 
always  be  considered  as  the  acts  of  the  owner. 

This  exemption  of  the  owner  from  liability  when  the  ship  is  under 
the  control  of  what  has  been  termed  a  "compulsory  pilot"  has  also 
been  declared  by  express  statutory  enactments.  Vide  Merchant  Ship- 
ping Act,  1854, "l 7  &  18  Vict.  c.  104,  §  388. 

In  cases  like  the  present,  when  damages  are  claimed  for  tortious 
collisions,  a  chattel,  such  as  a  ship  or  carriage,  may  be,  and  frequently 
is,  figuratively  spoken  of  as  the  wrongdoer ;  but  it  is  obvious,  that 
although  redress  ma}'  sometimes  be  obtained  by  means  of  the  seizure 
and  sale  of  the  ship  or  carriage,  the  chattel  itself  is  onl}-  the  instru- 
ment by  the  improper  use  of  which  the  injury  is  inflicted  by  the  real 
wrongdoer. 

Assuming,  as,  for  the  purposes  of  this  appeal,  their  lordships  are 
bound  to  assume,  the  truth  of  the  facts  stated  in  the  pleadings,  and 
applying  the  principles  of  the  common  law  and  statute  law  of  England 
to  those  facts,  it  appears  that  the  tort  for  which  damages  are  sought  to 
be  recovered  in  this  cause  was  a  tort  occasioned  solely  bv  the  negli- 
gence or  unskilfulness  of  a  person  who  was  in  no  sense  the  servant 
of  the  appellants,  a  person  whom  they  were  compelled  to  receive  on 
board  their  ship,  in  whose  selection  they  had  no  voice,  whom  they  had 
no  power  to  remove  or  displace,  and  who,  so  far  from  being  bound 


438  THE    "  II  ALLEY,"  [CHAP.  IX. 

to  receive  or  obe^'  their  orders,  was  entitled  to  supersede,  and  had, 
in  fact,  at  the  time  of  the  collision,  superseded,  the  authority  of  the 
master  appointed  by  them  ;  and  their  lordships  think  that  the  maxim, 
'■'•  qui  facit  1)6)'  aliuia^  fac'd  per  se,"  cannot  by  the  law  of  England 
be  applied,  as  against  the  appellants,  to  an  injury  occasioned  under 
such  circumstances  ;  and  that  the  tort  upon  which  this  cause  is  founded 
is  one  which  would  not  be  recognized  by  the  law  of  England  as  creat- 
ing any  liability  in,  or  cause  of  action  against,  the  appellants. 
I  It  follows,  therefore,  that  the  liability  of  the  appellants,  and  the  right 
of  the  respondents  to  recover  damages  from  them,  as  the  owners  of  the 
"Halley,"  if  such  liability  or  right  exists  in  the  present  case,  must  be 
the  creature  of  the  Belgian  law  ;  and  the  question  is,  whether  an  Eng- 
lish court  of  justice  is  bound  to  appl}'  and  enforce  that  law  in  a  case, 
when,  according  to  its  own  principles,  no  wrong  has  been  committed  by 
the  defendants,  and  no  right  of  action  against  them  exists. 

The  counsel  for  the  respondents,  when  challenged  to  produce  any 
instance  in  which  such  a  course  had  been  taken  by  any  English  court  of 
justice,  admitted  his  inabilit}'  to  do  so,  and  the  absence  of  an}'  such 
precedent  is  the  more  important,  since  the  right  of  all  persons,  whether 
British  subjects  or  aliens,  to  sue  in  the  English  courts  for  damages  in 
respect  of  torts  committed  in  foreign  countries  has  long  since  been 
established ;  and,  as  is  observed  in  the  note  to  Mostj-n  v.  Fabrigas, 
in  Smith's  Leading  Cases,  vol.  i.  p.  65G,  there  seems  to  be  no  reason 
why  aliens  should  not  sue  in  England  for  personal  injuries  done  to 
them  b}'  other  aliens  abroad,  when  such  injuries  are  actionable  both  by 
the  law  of  England  and  also  by  that  of  the  countr}'  where  they  are  com- 
mitted, and  the  impression  which  had  prevailed  to  the  contrary  seems 
to  be  erroneous. 

In  the  case  of  "  The  Amalia,"  1  Moore's  P.  C.  Cases  (n.  s.)  484,  Lord 
Chelmsford,  in  delivering  the  opinion  of  the  judicial  committee,  said : 
"  Suppose  the  foreigner,  instead  of  proceeding  in  rem  against  the  ves- 
sel, chooses  to  bring  an  action  for  damages  in  a  court  of  law  against 
the  owners  of  the  vessel  occasioning  the  injury,  the  argument  arising 
out  of  the  acquired  lien  would  be  at  once  swept  away,  and  the  rights 
and  liabilities  of  the  parties  be  determined  by  the  law  which  the  court 
would  be  bound  to  administer." 

As  Mr.  Justice  Story  has  observed  in  his  Conflict  of  Laws,  p.  32, 
'^it  is  difficult  to  conceive  upon  what_ffroujldjj_claiui  can  be^cstcd^o 
give  to  anv  municipal  laws  an  extraterritorial  effect,  when  those  laws 
^i-e  preiuSicial  to  the  lights  uP  the  pttn;rjiaJlQ&s-e^--tCLjjjOse  of  their; 
subjectsT^^  And  even  in  the  case  of  a  foreign  judgment,  which  is 
usually  conclusive  inter  parte!^,  it  is  observed  in  the  same  work,  at 
§  618a,  that  the  courts  of  England  may  disregard  such  judgment 
inter  partes  if  it  appears  on  the  record  to  be  manifestly  contrary  to 
public  justice,  or  to  be  based  on  domesticJcgislation  not-Feeosrnizcii  iji^ 
England  or  other  foreign  countries,  ^r  i&  fniuulf>d  "pon  a  misapprehen- 
sion  of  wTTal'ts  the  law  of  Eugland_^  Simpson  v.  Fogo,  1  H.  «&  M.  195. 


CHAP.  IX.]  THE   "  HALLEY."  439 

It  is  true  that  in  many  cases  the  courts  of  England  inquire  into  and 
act  upon  the  law  of  foreign  countries,  as  in  the  ease  of  a  contract 
entered  into  in  a  foreign  country,  where,  by  express  reference,  or  by 
necessary  implication,  the  foreign  law  is  incorporated  with  the  contract, 
and  proof  and  consideration  of  the  foreign  law  therefore  become  nec- 
essary to  the  construction  of  the  contract  itself.  And  as  in  the  case  of 
a  collision  on  an  ordinary  road  in  a  foreign  country,  where  the  rule  of 
the  road  in  force  at  the  place  of  collision  may  be  a  necessary  ingredient 
in  the  determination  of  the  question  by  whose  fault  or  negligence  the 
alleged  tort  was  committed.  But  in  these  and  similar  cases  the  English 
court  admits  the  proof  of  the  foreign  law  as  part  of  the  circumstances 
attending  the  execution  of  the  contract,  or  as  one  of  the  facts  upon 
which  the  existence  of  the  tort,  or  the  right  to  damages,  may  depend, 
and  it  then  applies  and  enforces  its  own  law  so  far  as  it  is  applicable  to 
the  case  thus  established ;  but  it  is,  in  their  lordships'  opinion,  alike 
contrary  to  principle  and  to  authority  to  hold,  that  an  English  court 
of  justice  will  enforce  a  foreign  municipal  law,  and  will  give  a  remedy 
in  the  shape  of  damages  in  respect  of  an  act  which,  according  to  its 
own  principles,  imposes  no  liability  on  the  person  from  whom  the 
damages  are  claimed. 

The  case  of  Smith  v.  Condr\-,  1  Howard's  Kep.  (U.  S.)  28,  in  the 
Supreme  Court  of  the  United  Slates,  appears  at  first  sight  to  have 
an  important  bearing  upon  this  case  ;  but,  upon  an  investigation  of 
the  report,  it  does  not  appear  that  any  question  as  to  a  conflict 
between  the  English  law  and  the  American  law  was  discussed  in  that 
case,  or  that  the  precise  point  now  under  consideration  was  noticed  in 
the  judgment,  nor  is  it  specifically  mentioned  in  any  of  the  three  ex- 
ceptions which  were  taken  to  the  decision  of  the  inferior  court,  and 
there  is  no  report  of  the  arguments. 

Their  lordships  think,  therefore,  that  that  case  cannot  be  treated  as 
an  authority  suflflcient  to  support  the  contention  of  the  respondents  ; 
and,  on  the  whole,  the}'  think  it  their  duty  humbly  to  advise  Her 
Majest}^  to  allow  this  appeal,  and  to  order  that  the  third  article  of 
the  plaintiff's  reply  be  rejected,  and  that  there  should  be  no  costs  of 
this  appeal. 


440  BAEING  V.   INLAUD   KEVENUE   COMMlBiSiONEBS.      |_CHAP.  X. 


CHAPTER  X. 

OBLIGATIONS  EX  CONTRACTU. 


SECTION   I. 

PLACE    OF    CONTRACTING, 


BARING  V.   INLAND   REVENUE    COMMISSIONERS. 

Court  of  Appeal.     1897. 

[Reported  [1898]  1  Queen's  Bench,  78.] 

The  question  raised  was  whether  an  unregistered  bond,  of  which 
the  appellant,  the  Honourable  J.  Baring,  was  the  holder,  whereby  the 
Atchison,  Topeka  and  Santa  Fe  Railway  Company,  a  corporation 
organized  under  the  laws  of  Kansas,  in  the  United  States  (hereinafter 
called  the  new  company),  promised  to  pay  to  bearer,  or,  if  the  bond 
should  be  registered  as  thereinafter  provided,  to  the  registered  holder 
thereof,  the  sum  of  1,000  dollars  with  interest  thereon  at  the  rate  of  4 
per  cent  per  annum  until  the  principal  became  due,  was  subject  to 
duty  under  the  Stamp  Act,  1891,  as  being  a  marketable  security  by  or 
on  behalf  of  a  foreign  company  made  or  issued  in  the  United  Kingdom 
within  s.  82,  sub-s.  (6),  (1),  of  that  act.^ 

A.  L.  Smith,  L.J.  I  am  of  opinion  that  this  appeal  should  be  dis- 
missed. It  is  not  necessary  for  me  to  state  the  facts  in  detail.  They 
may  be  summarized  as  follows.  There  was  a  company  called  the 
Atchison,  Topeka  and  Santa  Fe  Railway  Company,  incorporated  under 
the  law  of  Kansas.  In  1895  that  company  was  in  difficulties,  and  a 
reorganization  scheme  was  set  on  foot.  By  that  scheme  there  was  to 
be  a  foreclosure  suit  against  the  old  company,  which  was  to  be  wound 
up,  a  new  com|)any  was  to  come  into  existence  in  its  stead,  and  the 
bondholders  of  the  old  company  were  to  become  bondholders  of  the 
new  company.  The  scheme  was  carried  out  in  1896.  The  new  com- 
pany, in  pursuance  of  the  scheme,  issued  bonds,  the  form  of  which  is 
very  material.  There  is  an  exi)ress  stipulation  on  the  face  of  the  bond 
thai  it  shall  not  Iw  valid  for  any  purpose  unless  authenticated  by  the 
certificate  thereon  indorsed  of  the  trustee  under  the  mortgage  .oi-  deed 

1  The  statement  of  facts  and  arguments  of  counsel  are  omitted.  —  Ed. 


SECT.  I.]        BAKING   V.   INLAND   EEVENUE   COMMISSIONERS.  441 

of  trust.  The  document  seems  to  me  on  the  face  of  it  not  really  to  be 
a  bond,  but  a  mere  piece  of  paper  till  tliat  certificate  is  signed.  What 
happened  in  this  case  was  this.  One  of  these  documents  was  sent  from 
New  York  to  London  in  order  tliat  it  might  be  handed  over  to  the  ap- 
pellant, who,  as  having  been  a  bondholder  of  the  old  companv,  was 
entitled  to  a  bond  of  the  new  company.  Instead,  however,  of  con- 
verting the  document  into  a  bond  in  New  Yorli,  in  order  to  avoid  tlie 
pa3ment  of  a  heavy  premium  for  insurance,  it  was  sent  over  here  as  an 
inchoate  instrument,  and  not  a  bond  at  all,  and  the  vice-president  of 
the  trust  company  also  came  over  to  this  country  to  sign  the  requisite 
certificate  here  and  so  convert  the  document  into  a  bond.  The  certifi- 
cate having  been  thus  signed,  tlie  bond  was  delivered  to  Messrs.  Baring 
Brothers  &  Co.,  and  by  them  handed  over  to  the  appellant.  The  ques- 
tion which  arises  is,  where  was  this  bond  issued?  It  was  contended 
that  it  was  issued  in  New  York  when  the  piece  of  paper  was  given  to 
the  trust  company.  I  say  certainly  not.  It  is  true  that  a  piece  of 
paper  was  then  handed  to  the  trustee,  but  it  cannot  be  said  that  a  bond 
was  then  issued,  for  it  was  not.  I  do  not  think  there  can  be  an  issue  of 
an  instrument  within  the  statute  until  it  is  an  actual,  valid,  subsisting 
instrument.  I  think  that  this  bond  was  first  issued  in  this  country  after 
it  became  a  valid  instrument  by  the  signing  of  the  indorsed  certificate 
thereon,  until  which  time  it  was  a  mere  piece  of  paper  and  not  a  bond. 
I  cannot  understand  how  it  can  be  said  that  a  bond  has  been  issued  be- 
fore it  is  a  bond.  It  became  a  marketable  security  when  the  certificate 
was  signed,  and  not  till  then.  For  these  reasons  I  think  that  the  ap- 
peal should  be  dismissed. 

RiGBY,  L.  J.^  I  am  of  the  same  opinion.  The  sole  question  really 
appears  to  me  to  be  whether  this  instrument,  which  came  into  the  hands 
of  the  appellant  as  the  person  entitled  to  it  under  the  scheme  of  reor- 
ganization, was  issued  in  this  country  or  not,  and  I  cannot  entertain 
any  doubt  that  it  was  so  issued.  What  is  the  meaning  in  any  fair  sense 
of  the  word  ''issued"  in  the  section?  Of  course  a  document  is  not 
issued  if,  when  sealed,  it  is  put  away  in  a  box  and  kept  there.  Nor  do 
I  consider  that  a  document  even  if  it  were  complete  when  signed,  could 
be  said  to  be  issued,  if  it  were  handed  over  to  an  agent  with  instruc- 
tions that  he  was  not  to  part  with  it  or  make  it  an  instrument  on  which 
any  one  could  sue  until  some  consideration  was  received,  as  in  the  case 
of  an  ordinary  mortgage  deed  which  is  sealed  but  is  not  to  be  handed 
over  to  the  mortgagee  or  to  become  an  effective  mortgage  deed  until 
the  mortgage  money  is  paid.  It  seems  to  me  impossible  to  argue  that 
in  such  cases  there  could  be  said  to  be  an  issue  in  America,  even  if  the 
document  were  complete  when  signed,  if  it  were  only  to  be  handed  over 
to  the  person  who  was  to  sue  upon  it  upon  something  being  done,  as,  for 
example,  on  paying  the  consideration  money.  An  instrument  can  only^ 
be  said  to  be  issued  in  my  opinion  when  it  gets  into  the  hands  of  a 


1  Part  of  this  opinion  and  the  concurring  opinion  of  Collins,  Jj.  J.,  are  omitted. 
—  Ed. 


442        NORTHAMPTON  MUT.  LIVE  STOCK  INS.  CO.  V.  TUTTLE.       [CHAP.  X. 

person  wbn  r-nn  nvnil  liimsplf  of  it.  It  seems  to  me  that  that  is  the 
ordinary  meaning  of  the  word  ''  issued,"  and  at  an}-  rate  its  meaning  in 
the  act  which  we  have  to  construe.  When  this  document  was  executed 
b}-  the  corapan}-  in  America,  had  everything  been  done  that  was  neces- 
sary to  make  it  an  available  instrument?  Certainly  not.  On  the 
contrary,  it  was  guarded  by  a  condition  on  the  face  of  the  document 
that  it  should  have  no  validity  until  certified  by  the  trust  company. 
It  was  argued  that,  as  the  trust  company  were  dealing  with  the  mat- 
ter under  the  orders  and  directions  of  the  joint  executive  committee, 
the  bond  had  gone  beyond  the  control  of  the  railway  company,  and 
that  constituted  the  test  as  to  whether  it  had  been  issued.  I  cannot 
accede  to  that  view.  In  the  instance  which  I  gave  of  an  instrument 
beino-  sent  to  an  agent  with  instructions  to  deliver  it  to  a  person  on 
payment  of  the  consideration  money,  the  instrument  would  be  be- 
vond  the  control  of  the  sender  in  the  sense  in  which  this  bond  was 
beyond  the  control  of  the  railway  company.  The  company  had  a 
bargain  winch  was  to  be  fulfilled,  and,  unless  it  were  fulfilled,  they 
could  not  get  the  advantages  for  which  they  had  bargained.  During 
the  transmission  of  the  document  from  New  York,  and  until  the 
certificate  was  signed,  no  one  could  sue  on  it.  Until  the  certifica- 
tion tliere  could  be  no  issue.  I  do  not  say  that  there  was  an  issue 
upon  the  certification ;  but  when  the  certified  bond,  being  then  a 
complete  instrument,  which  might  be  sued  upon  if  banded  over  to 
a  person  who  was  entitled  to  it,  was  handed  over  to  such  a  person,  I 
do  not  doubt  there  was  an  issue.  There  can  be  only  one  issue  within 
the  meaning  of  the  act,  and  that  is  when  the  instrument  first  gets  into 
the  hands  of  some  one  who  can  make  it  available  for  his  benefit.^ 


NORTHAMPTON   MUTUAL    LIVE   STOCK    INSURANCE 
CO.   V.  TUTTLE. 

Supreme  Court,  New  Jersey.     1878, 

[Reported  40  New  Jerseij  Law^  476.] 

Van  Syckel,  J.^  The  plaintiff  brought  suit  before  a  justice  of  the 
peace  of  the  county  of  Warren,  to  recover  the  amount  of  an  assessment 
made  against  the  defendant  upon  a  policy  of  insurance  issued  to  him 
by  the  plaintilf  company.  The  phiinlitr  recovered  a  judgment  before 
the  justice,  which  was  reversed  in  the  Warren  Common  Pleas,  on  the 
ground  that  the  insurance  company,  plaintiff,  was  a  foreign  insurance 

1  Aec.  Aultman  v.  Holder,  68  Fed.  467.  The  place  of  delivery  of  a  boud  or  negoti- 
able instrument  is  the  place  of  contracting,  not  tlie  ]ilace  wlicrc  the  instrument  is 
written  or  signed.  Young  v.  Harris,  14  li.  Mon.  5.-)() ;  Watson  v.  Laue,  52  N.  J.L.  550, 
20  Atl.  894  ;   I 'ugh  r.  Cameron,  1 1  W.  Va.  52.3.  —  Ed. 

•^  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.  I.J       NORTHAMPTON  MUT.  LIVE  STOCK  INS.  CO.  V.  TUTTLE.         443 

company,  and  that  the  contract  was  a  New  Jersey  contract,  negotiated 
by  an  agent  in  New  Jersey,  contrary  to  our  statute.  Nix.  Dig.  435, 
§  66  ;  lb.  436,  §  73. 

The  policy  was  dated  Maj-  27,  1872,  and  insured  defendant  for  the 
term  of  one  year.  An  assessment  was  made  July  2,  1872,  which  i)aid 
the  company's  losses  to  that  date.  The  losses  from  July  2,  1872,  to 
January  14,  1873,  amounted  to  about  $12,000,  and  this  sum  was  the 
basis  of  the  assessment  for  which  the  defendant  was  sued. 

The  property  insured  was  in  this  State,  where  the  defendant  and 
Thatcher,  one  of  the  directors  of  the  insurance  company,  resided  when 
the  polic}'  was  issued. 

The  application  was  signed  b}-  the  defendant  in  this  State,  where 
Thatcher  gave  him  a  receipt,  of  which  the  following  is  a  copy  : 

*'  Northampton  Mutual  Live  Stock  Insurance  Company-,  of  Northamp- 
ton Count}-,  Pa. 

"  Received  of  Wm.  Tuttle,  for  an  insurance  by  the  Northampton 
Mutual  Live  Stock  Insurance  Company  against  loss  by  death  upon  the 
animals  described  in  application,  the  sum  of  one  dollar  and  thirty-  cents, 
being  the  amount  paid  for  membership  for  the  term  of  one  year  from 
the  27th  day  of  May,  1872,  for  which  said  company  agrees  to  issue  a 
polic}'  to  said  applicant  when  the  application  is  approved,  and  if  not 
approved,  the  above  amount  to  be  refunded  to  the  said  applicant. 

"J.  B.  Thatcher, 

"  Dated  May  27,  1872.  Agtnt:* 

Article  VI.  of  the  by-laws  of  the  company  provided  that  the  agent  of 
the  company  should  give  a  receipt  for  the  premium  paid,  and  that  the 
insurance  should  take  effect  from  that  time,  provided  the  application 
was  approved  b}'  the  board  of  directors,  or  its  executive  committee, 
after  which  the  policy  would  be  issued  ;  and  if  not  approved,  the  money 
would  be  refunded. 

In  this  case  the  application  for  insurance  was  taken  hy  Thatcher  to 
Easton,  in  the  State  of  Pennsylvania,  where  it  was  approved  by  the 
directors  of  the  company,  and  the  policy  was  there  issued  and  sent  bj' 
mail  to  the  defendant,  in  New  Jersey. 

If  the  contract  of  insurance  was  made  in  the  State  of  Pennsylvania, 
and  was  valid  there,  comity  requires  us  to  enforce  it  here.  Columbia 
Ins.  Co.  V.  Kinyon,  8  Vroom,  33. 

This  case,  therefore,  turns  upon  the  question  whether  it  was  made  in 
this  State. 

Thatcher  acted  as  the  agent  of  the  company,  with  authorit}-  to  re- 
ceive applications.  He  received  the  defendant's  application,  with  the 
premium,  which  he  transmitted  to  the  company  at  its  place  of  business 
in  Pennsylvania.  By  the  express  terms  of  the  receipt  given  by  the 
agent  to  the  defendant,  the  company-  had  the  option  to  approve  the 
application  and  issue  a  policy,  or  To  reject  it  and  refund  the  premium. 


44-4        EQUITABLE  LIFE  ASSURANCE  SOCIETY  V.  CLEMENTS.       [CHAP.  X 

It  was  a  mere  proposition,  from  which  the  parties  might  have  receded, 
and  not  a  contract.  Approval  by  the  company  was  necessary  to  ripen 
it  into  a  contract.  Not  until  then  did  the  minds  of  the  parties  come 
together,  and  invest  the  transaction  with  the  attributes  of  a  valid 
agreement.  The  contract  of  insurance  must  be  regarded  as  having 
been  made  when  the  company  approved  the  defendant's  application, 
and  issued  and  transmitted  to  him  their  policy.  Hyde  v.  Goodnow, 
3  N.  Y.  266  ;  Huntley  v.  Merrill,  32  Barb.  626. 

The  contract  must  be  held  to  have  been  made  where  the  last  act 

TiPf^Pgtjqry    tr>-pr>mp1f^j-,P    it    vy.is    domv! 

Although  there  is  some  conflict  in  the  cases,  I  think  the  weight  of 
authorit}'  is,  that  when  the  offer  of  the  insured  was  accepted,  and  the 
polic}'  deposited  in  the  post  office  bj-  the  company,  properly  addressed 
to  the  insured,  the  contract  was  made.  It  did  not  remain  incomplete 
until  the  insured,  by  receiving  the  polic}",  was  notified  of  the  acceptance 
of  his  proposal.   .   .  . 

It  being  conceded  that  the  approval  of  the  application  was  given  in 
Pennsylvania,  and  the  policy  mailed  there,  the  contract  must  be  ad- 
judged to  have  been  made  in  that  State,  and  not  in  New  Jersey.  The 
contract,  therefore,  is  valid,  and  comity  requires  its  enforcement  here. 
Columbia  Fire  Insurance  Co.  v.  Kinyon,  8  Vroom,  33.  .  .  . 

The  judgment  of  the  Warren  Pleas,  that  the  contract  was  void  under 
the  statute  law  of  this  State,  was  erroneous,  and  should  be  set  aside. ^ 


EQUITABLE   LIFE    ASSURANCE   SOCIETY   v.    CLEMENTS. 
SuPRKME  Court  of  the  United  States.     1S91. 
[Reported  140  United  States,  226.] 

This  was  an  action  brought  by  Alice  L.  Wall,  a  citizen  of  Missouri 
and  widow  of  Samuel  E.  Wall,  and  prosecuted  by  Benjamin  F.  Pettus, 
her  administrator,  against  the  Equitable  Life  Assurance  Society  of  the 
United  States,  a  corporation  of  New  York  and  doing  business  in 
Missouri,  on  a  policy  of  insurance  executed  by  the  defendant  at  its 
office  in  the  city  of  New  York  on  December  23,  1880,  upon  the  life  of 
Samuel  E.  Wall,  by  which,  in  consideration  of  the  payment  of  $136.25 
by  him,  and  of  the  pa^'ment  of  a  like  sum  on  or  before  December  15 
in  each  year  during  the  continuance  of  the  contract,  it  promised  to  pay 
to  Alice  L.  Wall,  his  wife,  $5,000  at  its  office  in  the  city  of  New  York, 
within  sixty  days  after  satisfactory'  proofs  of  his  death.  •^  .   .   . 

1  Ace.  Com.  Mut.  Fire  Ins.  Co.  i-.  Wm.  Knabe  Mfg.  Co.,  171  Mass.  265,  50  N.  E. 
516;  Hyde  v.  Gooduow,  3  N.  Y  266.  See  V^oorheis  v.  Peoples'  Mut.  Ben.  Soc,  91 
Mich.  469,  51  N.  W.  1109 ;  Davis  v.  Ins.  Co.,  67  N.  H.  218,  34  Atl.  464 ;  Galloway  v. 
Staudanl  Fire  Ins.  Co.,  45  W.  Va.  237,  31  S.  E.  969.  —  Ed. 

-  The  statement  of  facts  and  part  of  the  opinion  are  omitted.  —  Fd. 


SECT.  I.]       EQUITABLE  LIFE  ASSURANCE  SOCIETY  V.  CLEMENTS.  445 

Gray,  J.  Upon  the  question  whether  the  contract  sued  on  was  made 
in  New  York  or  in  Missouri,  there  is  nothing  in  the  record,  except  the 
policy  and  application,  the  petition  and  answer,  b}-  which  the  facts  ap- 
pear to  have  been  as  follows :  The  assured  was  a  resident  of  Missouri, 
and  the  application  for  the  polic}'  was  signed  in  Missouri.  The  policy, 
executed  at  the  defendant's  office  in  Kew  York,  provides  that  "  the 
contract  between  the  parties  hereto  is  completel}'  set  forth  in  this  policy 
and  the  application  therefor,  taken  together."  The  application  declares 
that  the  contract  "■  shall  not  take  effect  until  the  first  premium  shall 
have  been  actuall}'  paid  during  the  life  of  the  person  herein  proposed 
for  assurance."  The  petition  alleges  that  that  premium  and  two  annual 
premiums  were  paid  in  Missouri.  The  answer  expressh*  admits  the 
payment  of  the  three  premiums,  and,  b}-  not  controverting  that  they 
were  paid  in  Missouri,  admits  that  fact  also,  if  material.  Missouri 
Rev.  Stat.  1879,  §  3545.  The  petition  further  alleges  that  the  policy 
was  delivered  in  Missouri ;  and  the  answer  admits  that  the  polic}'  was, 
''  at  the  request  of  the  said  Wall,  transmitted  to  the  State  of  Missouri 
and  was  delivered  to  said  Wall  in  said  State."  If  this  form  of  admis- 
sion does  not  imph'  that  the  polic}'  was  at  the  request  of  Wall  trans- 
mitted to  another  person,  perhaps  the  company's  agent,  in  Missouri, 
and  b}'  him  there  delivered  to  Wall,  it  is  quite  consistent  with  such  a 
state  of  facts  ;  and  there  is  no  evidence  whatever,  or  even  averment, 
that  the  policj'  was  transmitted  by  mail  directly  to  Wall,  or  that  the 
company  signified  to  Wall  its  acceptance  of  his  application  in  an}'  other 
way  than  In*  the  delivery  of  the  policy  to  him  in  Missouri.  Upon  this 
record,  the  conclusion  is  inevitable  that  the  policy  never  became  a  com- 
pleted contract,  binding  either  part}'  to  it,  until  the  deliver}'  of  the  policy 
and  the  payment  of  the  first  premium  in  Missouri ;  and  consequently 
that  the  policy  is  a  Missouri  contract  and  governed  by  the  laws  of 
Missouri.   .  .  . 

It  follows  that  the  insertion,  in  the  policy,  of  a  provision  for  a  differ- 
ent rule  of  commutation  from  that  prescribed  by  the  statute,  in  case  of 
default  of  payment  of  premium  after  three  premiums  have  been  paid, 
as  well  as  the  insertion,  in  the  application,  of  a  clause  by  which  the 
beneficiary  purports  to  "  waive  and  relinquish  all  right  or  claim  to  any 
other  surrender  value  than  that  so  provided,  whether  required  by  a 
statute  of  any  State,  or  not,"  is  an  ineffectual  attempt  to  evade  and 
nullify  the  clear  words  of  the  statute. 

Judgment  affirmed} 

1  Ace.  Hicks  V.  Ins.  Co.,  60  Fed.  690;  Ford  v.  Ins.  Co.,  6  Bush,  133;  Cromwell 
V.  Ins.  Co.,  49  Md.  366  ;  Fidelity  Mut.  L.  Ass.  v.  Ficklin,  74  Md.  172,  21  Atl.  680;  Ins. 
Co.  V.  Sawyer,  160  Mass.  413,  36  N.  E.  59;  Estate  of  Breitung,  78  Wis.  33,  46  N.  W. 
891.— Ed. 


446  STAPLES    V.   NOTT.  [CHAP.  X. 


STAPLES   V.   NOTT. 
Court  of  Appeals,  New  York.     1891. 

[Reported  128  New  York,  403.] 

Gray,  J.  The  promissory  note  in  suit  bears  date  at  "Washington, 
D.  C,  April  5,  1889  ;  was  made  payable  at  a  bank  in  Watertown, 
N.  Y.,  and  carried  interest  at  the  rate  of  seven  per  cent  per  annum. 
The  appellant  was  indorser  upon  it,  and  defends  on  the  ground  of 
usur}'.  If  the  contract  of  the  parties,  wbich  is  evidenced  bv  this  note, 
was  governed  b}-  the  laws  of  this  State,  the  defence  should  have  pre- 
vailed ;  but  if  made  under  the  laws  of  the  District  of  Columbia  the 
judgment  was  right  and  should  be  sustained. 

The  note  was  given  in  renewal  of  a  balance  due  upon  a  prior  note, 
made  by  and  between  the  same  parties,  which  bore  date  at  Washington, 
D.  C,  April  5,  1888  ;  was  payable  one  year  after  date  at  a  bank  in 
Washington  ;  bore  the  same  rate  of  interest  and  was  similarly  indorsed. 
Some  payments  were  made  on  account  of  the  principal,  but,  before  its 
maturity,  the  maker  requested  of  plaintiff,  a  resident  of  Washington,  by 
letter,  to  renew  for  the  balance  remaining  due.  Failing  to  receive  any 
reply,  he  went  on  to  Washington  and  there  prevailed  upon  the  plaintiff 
to  agree  to  take  a  new  note  for  his  debt.  This  note  was  then  drawn  by 
the  plaintiff  and  handed  to  the  maker  for  execution,  who  took  it  back 
to  his  home  in  S^'racuse,  N.  Y.,  where  his  and  the  appellant's  signatures 
were  affixed,  as  maker  and  indorser  respectiveh^.  It  had  been  agreed 
with  the  plaintiff  that,  upon  this  new  note  being  returned  to  him,  he 
would  send  back  the  original  note,  and  the  appellant  himself  mailed  the 
renewal  note  to  the  plaintiff  in  Washington. 

These  facts,  which  were  not  disputed,  should  make  it  perfectly  ob- 
vious that  there  was  here  every  essential  to  a  valid  contract  under  the 
laws  of  the  plaintiffs  domicil,  and  the  only  accompaniment  lacking  to 
a  full  local  coloring  was  tire  foreign  place  named  for  payment.  For  the 
affixing  of  the  signatures  to  the  note  by  the  maker  and  the  indorser, 
however  important  as  acts,  was  yet  but  a  detail  in  the  performance 
and  execution  of  the  contract  which  had  been  agreed  upon  with  the 
plaintiff.  But  naming  a  Xew  York  bank  as  the  place  where  the  maker 
would  provide  for  the  payment  of  the  note  did  not  characterize  the  con- 
tract in  one  way  or  the  other.  That  arrangement  was  one  simply  for 
the  convenience  of  the  maker.  It  could  have  no  peculiar  effect.  The 
transactions,  wliich  resulted  in  an  agreement  to  extend  the  time  for  the 
payment  of  the  debt  and  to  accept  a  new  note,  took  place  whollv  in 
the  District  of  Columbia,  and  what  else  was  enacted  in  the  matter 
elsewhere  neither  added  to  nor  altered  the  agreement  of  the  parties, 
'riiouffh  the  enp;.iq;ement  of  the  indorser,  in  a  sense,  was  independent  of 
that  of  the  maker,  that  proposition  is  one  which  does  not  affect  the  local 
character  of  tlie  contract,  but  which  simply  concerns  the  question  of  the 


SECT    f.J  STAPLES    V.    NOTT,,  447 

enforcement  of  the  indorser's  liabilit}'.  Whatever  the  previous  knowl- 
edge  of  the  appellant,  as  to  the  negotiations  and  the  agreement  for  a 
renewal  of  the  promise  to  pa}*  between  the  maker  of  the  old  note  and 
the  plaintiff,  the  question  is  without  importance.  When  he  indorsed 
the  note,  which  had  been  prepared  and  was  brought  to  him,  and  sent  ft  ^ 
through  the  mail  to  the  plaintiff,  his  engagement  was  with  respect  to  a^ 

contract  valuTly  made  according  to  the  laws  of  the  District  of  Columbia^ 

and' when  the  note^as  receivud  by  the  i)laintitf  the  transaction  was_ 
then  consummated  in  that  place.  In  Lee  o.  Sellcck,  33  N.  Y.  G15,  it 
"'^^libi  BalctJ  with  respect  to  an  indorsement  in  Illinois  of  a  note  made  in 
New  York,  that  the  fact  of  the  indorser  writing  his  name  elsewhere 
was  of  no  moment.  Upon  delivery  by  his  agent  to  the  plaintiffs  in  New 
Y'ork,  it  became  operative  as  a  mutual  contract. 

The  agreement,  which  was  made  in  Washington  for  the  giving  of  the 
promissory  note  in  question,  was  the  forbearance  of  a  debt  already  due, 
upon  which  the  appellant  was  liable  ;  and  the  renewal  of  his  engage- 
ment as  indorser  upon  the  note,  without  an}'  qualification  of  his  con- 
tract of  indorsement,  was  in  fact  an  act  in  ratification  and  execution  of 
the  previous  agreement.  That  agreement  between  the  plaintiflf  and  the 
maker  in  Washington  took  its  concrete  legal  form  in  a  note,  prepared 
there  by  the  plaintiflf,  with  a  rate  of  interest  sanctioned  by  the  laws  of  his 
domicil,  adopted  by  the  appellant  by  indorsement  in  blank,  and  made 
operative  as  a  mutual  contract  by  delivery  to  plaintiff  in  Washington 
through  the  mails. 

For  the  court  to  hold,  because  the  note  was  not  actually  signed  and 
indorsed  in  the  District  of  Columbia,  where  the  agreement,  it  evidenced, 
■was  made,  or  because  it  was  made  payable  in  another  State,  that  the 
contract  was  void  as  contravening  the  usur}-  laws  of  the  place  of 
signature  and  of  payment,  would  be  intolerable  and  against  decisions 
of  this  court.  Wayne  Co.  Sav.  Bank  v.  Low,  81  N.  Y.  566  ;  Western 
T.  &  C.  Co.  V.  Ki'lderhouse,  87  N.  Y.  430 ;  Sheldon  v.  Haxtuu,  91 
N.  Y.  124. 

I  think  the  plaintiff  was  entitled  to  recover,  as  upon  a  contract  made 
tinder  the  government  of  the  laws  of  the  District  of  Columbia,  and., 
therefore,  valid  and  enforceable  in  an}'  State. 

The  judgment  should  be  affirmed,  with  costs. 

All  concur.  Judgment  affirtned} 

1  Ace.  Findlay  v.  Hall,  12  Oh.  S.  610.  See  Bascom  v.  Zediker,  48  Neb.  380,  67 
N.  W.  148;  Rowland  v.  B.  &  L.  Ass.,  115  N.  C.  825,  18  S.  E.  965;  Mills  v.  Wilson, 
88  Pa.  118. 

In  an  ordinarv  case,  where  a  note  is  sent  by  mail  by  the  maker  to  the  payee,  the 
contract  is  made  at  the  place  of  mailing.  William  Glenny  Glass  Co.  v.  Taylor,  99  Ky. 
24,  34  S.  W.  711  ;  Barret  v.  Dodge,  16  R.  I.  740,  19  Atl.  530. 

A  contract  to  guaranty  a  debt  is  made  where  the  debt  is  created.  Alexandria,  A. 
&  F.  S.  R.  R.  V.  Johnson,"61  Kau.  417,  59  Pac.  1063;  Milliken  v.  Pratt,  125  Mass.  374, 
supra,  p.  11  ;  John  A.  Tolman  Co.  o.  Reed,  115  Mich.  71,  72  N.  W.  1104;  and  see  S. 
V.  Williams.  46  La.  Ann.  922,  15  So.  290.  —  Ed. 


448  MACK   V.   LEE.  [chap.  X 


MACK  V.  LEE. 

Supreme  Court  of  Rhode  Island.     1881. 

[Reported  13  Rhode  Island,  293.] 

DURFEE,  C.  J.  This  is  assumpsit  to  recover  $312.50  for  five  barrels 
of  wliiskey  sold  by  tlie  plaintiff,  a  trader  in  New  York,  to  the  defend- 
ant, a  retail  dealer  in  Woonsocket,  in  this  State.  The  sale  was  made 
in  pursuance  of  an  order  addressed  by  the  defendant  to  the  plaintiff  in 
New  York  for  the  whiskey  to  be  sent  to  the  defendant  by  the  Stoning- 
ton  Line  on  three  mouths'  credit.  The  whiskey  was  delivered  in  New 
York  for  transportation  by  the  Stouington  Line  to  the  defendant  in 
Woonsocket,  he  paying  the  freight.  It  appeared,  on  cross-examination 
of  the  plaintifTs  witnesses,  that  the  order  for  the  whiskey  was  obtained 
by  one  Levy,  a  travelling  agent  for  the  plaintiff,  who  visited  the  de- 
fendant at  "his  place  of  business  in  Woonsocket,  having  samples  of 
liquors  with  him,  and  there  solicited  the  order.  There  was  also  some 
evidence  that  Levy  offered  to  sell  the  whiskey  to  the  defendant,  at 
Woonsocket,  though  the  plaintiff  and  Levy  also  testified  that  Levy  had 
no  authority  to  negotiate  sales  for  the  plaintiff,  but  only  to  obtain  or- 
ders, which  the  defendant  would  fill  or  not,  according  to  his  own  judg- 
ment. After  the  introduction  of  the  plaintiff's  testimony,  the  defendant 
moved  that  the  plaintiff  be  nonsuited,  on  the  ground  that  an  offer  in 
Rhode  Island  to  sell  the  whiskey  was  in  violation  of  Pub.  Laws  R.  I.  cap. 
508,  §  18,  of  June  25,  1875,  and  that  therefore  under  §  44  of  this  chapter 
the  plaintiff  could  not  recover.  The  court  granted  the  motion.  The 
plaintiff  excepted  and  petitions  for  a  new  trial  for  error  in  the  ruling. 

We  think  the  court  erred.  The  sale  was  consummated  in  New  York 
when  the  plaintiff  delivered  the  whiskey  there  to  the  Stouington  Line 
in  execution  of  the  defendant's  order.  Schlesinger  &  Bluraeuthal  r. 
Stratton,  9  R.  I.  578.  The  sale  therefore,  independently  of  Levy's 
offer,  if  he  made  any  offer,  was  clearly  valid.  In  what  way  did  Levy's 
offer,  if  he  made  any  offer,  make  it  invalid?  If  the  offer  was  an  offer 
to  sell  in  New  York,  it  was  not  a  violation  of  cap.  508,  §  18,  for  §  18 
onlv  prohibits  an  offer  to  sell  by  sample  or  otherwise  when  it  is  an 
offer  to  sell  "  in  violation  of  the  preceding  sections  ;  "  i.  e.,  when  it  is 
an  offer  to  sell  in  Rliode  Island.  But  if  tlie  offer  was  an  offer  to  sell 
in  Rhode  Island,  then  the  offer  was  neither  accepted  by  the  defendant 
nor  carried  out  by  the  plaintiff,  for  the  order  given  by  the  defendant 
and  executed  by  the  plaintiff  was  an  order  for  whiskey  to  be  sold  and 
delivered  in  New  York,  and  we  do  not  see,  therefore,  how  the  offer, 
though  in  itself  it  may  have  been  criminal,  can  be  held  to  have  infected 
the  sale  with  criminality  or  to  have  prejudiced  the  plaintiff's  right  to 
recover  on  it.  Exceptions  sustained} 

1  Arc.  Atlantic  Phosphate  Co.  v.  Ely,  82  Ga.  438  ;  S.  v.  Colby,  92  la.  463.  61  N.  W. 
187  ;  Claflin  r.  Mayer,  41  La.  Ann.  1048;  Boothby  v.  Haisted,  51  N.  H.  436.  Seo 
Riudskopf  !•.  DeKuytcr,  39  Mich.  1.  — Ki>. 


SECT.  I.]  HILL   V.    CHASE.  449 


HILL    V.   CHASE. 

Supreme  Judicial  Court  of  ^Massaccusetts.     1886. 

[Reported  143  Massachusetts,  129.] 

Morton,  C.  J.  The  only  question  presented  In-  this  bill  of  excep- 
tions is  whether  the  presiding  justice  of  the  Superior  Court,  who  tried 
the  case  without  a  jury,  was  justified  in  finding  that  the  contract  sued 
on  was  made  in  this  State. 

It  appeared  in  evidence  that  the  defendant,  a  married  woman  living 
in  Salem  in  the  State  of  New  Hampsliire,  in  the  summer  of  the  year 
1864,  employed  her  sister,  Mrs.  Shirley,  to  borrow  for  her  fifty  dollars 
of  Mr.  Hill,  her  brother,  living  in  Salem  in  the  State  of  Massachusetts. 
Mr.  Hill  declined  to  lend  the  money,  but  the  plaintiff,  his  wife,  out  of 
her  own  money,  delivered  to  Mrs.  Shirley  fifty  dollars,  together  with  a 
paper,  of  which  the  following  is  a  cop^v  : 

''  Salem,  July  1,  1864.  Borrowed  and  received  from  Nancy  D.  Hill 
the  sum  of  fifty  dollars. 

"  Sign  this  and  return  it." 

Mrs.  Shirley  carried  the  money  and  paper  to  the  defendant,  who  took 
and  kept  the  money,  signed  the  paper,  knowing  its  contents,  and  returned 
it  to  the  plaintiff  at  Salem  in  this  State. 

The  presiding  justice  was  justified  in  finding  that,  according  to  the 
understanding  and  purpose  of  the  parties,  the  plaintitT  lent  to  the  de- 
fendant, through  her  agent,  Mrs.  Shirley,  the  sum  of  fift\-  dollars  at 
Salem  in  Massachusetts  ;  and  that  the  defendant  ratified  the  acts  of 
her  agent".  There  is  no  evidence  which  shows  that  the  plaintiff  em- 
ployed Mrs.  Shirley  as  her  agent  to  lend  raonev  for  her  in  New  Hamp- 
shire. The  justifiable  inference  from  all  the  evidence  is,  that  the  parties 
intended  that  the  transaction  should  be  in  form,  what  it  was  in  sub- 
stance, a  loan  by  the  plaintiff  to  the  defendant,  the  plaintiff  assuming, 
what  the  evidence  shows  to  have  been  true,  that  tlie  defendant  had  no 
choice  as  to  the  person  of  whom  she  borrowed,  and  that  she  would 
ratify  the  act  of  her  agent. 

This  being  so,  the  fact  that  the  paper  was  signed  in  New  Hampshire 
is  immaterial.  The  contract  of  loan  being  made  in  this  State,  upon  the 
condition  that  the  paper  should  be  signed  and  returned  to  the  plaintiff 
in  this  State,  the  paper  became  operative  as  evidence  of  the  contract 
when  it  was  delivered  to  the  plaintiff  in  this  State.  Lawrence  v.  Bassett, 
5  Allen,  140  ;  Milliken  v.  Pratt,  125  Mass.  374. 

We  are  therefore  of  opinion,  that  the  Superior  Court  was  justified  in 
refusing  to  rule  that  the  contract  sued  on  was  made  in  New  Hampshire, 
and  in  the  finding  that  it  was  made  and  to  be  performed  in  Massachu- 
setts, and  therefore  is  to  be  governed  by  the  laws  of  this  State. 

Exceptions  overruled. 

29 


450  PERRY    V.    MOUNT    HOPE    IKON    GO.  [CHAP.  X. 


PERRY  V.   MOUNT   HOPE   IRON   COMPANY. 

Supreme  Court  of  Rhode  Island.     18SG. 

{Reported  15  Rhode  Island,  380] 

DuRFEE,  C.  J.^  This  is  an  action  to  recover  damages  of  the  defend- 
ant corporation  for  refusing  to  receive  a  cargo  of  "  bolt  and  nut  scrap 
and  boiler-plate  "  iron,  so  called,  which  the  plaintiff  claims  the  defend- 
ant agreed  to  buy  at  the  rate  of  87i  cents  per  hundred,  delivered  at  its 
works  in  Somerset,  Mass.  Upon  trial  in  the  Court  of  Common  Pleas, 
the  jury  found  a  verdict  for  the  plaintiflF.  The  case  is  before  us  on  the 
defendant's  petition  for  a  new  trial  for  alleged  misrulings,  and  on  the 
ground  that  the  verdict  was  against  the  evidence  and  the  weight 
thereof.  The  plaintiff  lives  and  does  business  in  Providence.  The 
defendant  is  a  Massachusetts  corporation,  having  its  business  estab- 
lishment in  Somei'set,  Mass.  Job  M.  Leonard  is  treasurer,  and  has  an 
office  in  Boston.  He  makes  purchases  for  the  defendant.  On  the  trial 
in  the  court  below,  the  plaintiff  put  in  testimony  to  show  that  his  agent 
visited  Leonard  April  30,  1885,  and  informed  him  that  the  plaintiff  had 
the  *'nut  and  bolt  shop  scrap,"  and  solicited  an  offer  for  it;  that 
Leonard  offered  87^  cents  per  hundred,  delivered  at  the  companj-'s 
wharf,  and  the  agent  asked  him  to  let  the  offer  stand  until  the  next 
day,  wliich  Leonard  agreed  to  do  ;  and  that  the  next  day  the  plaintiff 
telegraphed  from  Providence  to  Leonard  in  Boston,  accepting  the 
offer.  The  defendant  did  not  admit  that  the  of!er  was  made  as  stated, 
and  made  the  point  that,  if  it  was  so  made,  the  contract  was  not  com- 
pleted b}'  the  acceptance  until  the  acceptance  reached  him  in.  Boston, 
and  that  consequently  the  alleged  contract  was  a  Massachusetts  con- 
tract, and,  not  being  in  writing,  was  invalid  under  the  Massachusetts 
Statute  of  Frauds,  which  was  put  in  proof.  The  court  below  ruled  the 
point  against  the  defendant,  holding  that  the  contract  was  completed 
in  Rhode  Island  by  sending  the  telegram.  The  defendant  cites  a  few 
cases  which  support  its  position.  McCullough  v.  Eagle  Insurance  Co., 
1  Pick.  278  ;  British  and  American  Telegraph  Co.  v.  Colson,  L.  R.  6 
Exch.  108  :  Langdell's  Cases  on  Contracts,  §$  1-18;  Langdell's  Sum- 
mary of  Contracts,  §§  14-16.  But  the  weight  of  authority  strongly 
supports  the  instruction  given  by  the  court.  1  Addison  on  Contracts, 
*18.  note  1,  and  cases  there  cited;  IMaclay  r.  Harvey,  32  Am.  Rep. 
note  on  p.  40.  This  note  contains  a  full  report  of  the  recent  English 
case,  Household  Fire  and  Carriage  Accident  Insurance  Co.  v.  Grant, 
L.  R.  4  Exch.  Div.  216.  The  case  was  decided  in  the  Court  of  Appeal 
July  K  1870.  by  Thessiger  and  Bagallay,  L.JJ.,  Bramwell.  L.  J.,  dis- 
senting. ( Its  doctrine  is,  tliat  the  contract  is  liinding  on  tlie  proposer 
as  soon  as  a  letter  accepting  the   proposal,  properly  directed  to  him,  is 

*  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.  II-]  CLEGG   V.    LEVY.  451 

posted  by  the  recipient,  whether  it  reaches  the  proposer  or  not,  if 
posted  without  unreasonable  dela}',  and  the  post  is  the  ordinary  and 
natural  mode  of  transmitting  the  acceptance. )  In  that  case  the  letter 
did  not  reach  the  proposer,  and  Bramwell,  L.  J.,  who  dissented,  con- 
ceded that,  ''  where  a  posted  letter  arrives,  the  contract  is  complete  on 
posting."  In  the  case  at  bar  the  arrival  of  the  telegram  is  not  disputed. 
We  are  of  opinion  that  the  contract,  if  made,  was  completed  in  Rhode 
Island  and  is  a  Rhode  Island  contract,  notwithstanding  it  was  to  be 
performed  in  Massachusetts.  Hunt  v.  Jones,  12  R.  I.  265.  If  there 
be  any  question  that  the  telegraph  is  a  natural  and  ordinary  mode  of 
transmitting  such  an  acceptance,  that  is  a  question  of  fact  for  the  jury  ; 
but  we  are  of  opinion  that,  if  it  be  shown  that  the  acceptance  duly 
reached  the  defendant,  the  question  of  the  mode,  no  mode  having  been 
specified,  is  immaterial. 


SECTION    II. 

FORMALITIES. 


CLEGG   V.   LEVY. 

Nisi  Prius.     1812. 
\_Reported  3  Campbell,  166. J 

To  an  action  for  goods  sold  and  delivered,  the  principal  defence  set 
up  was  a  partnership  between  the  plaintiff  and  defendant  in  respect  to 
the  goods  in  question.  To  prove  this,  an  unstamped  agreement  was 
put  in,  which  had  been  signed  by  the  parties  at  Surinam.  The  witness 
who  proved  the  plaintiff's  signatui'e  to  it,  had  resided  as  a  merchant  in 
Surinam,  and  stated  that  in  that  colon\'  all  agreements  must  be  stamped 
to  be  of  any  validit}-,  and  that  there  is  a  written  law  of  the  colony  to  this 
effect. 

Lord  Ellenborough.  I  should  clearly  hold,  that  if  a  stamp  was 
necessaiy  to  render  this  agreement  valid  in  Surinam,  it  cannot  be  re- 
ceived in  evidence  without  that  stamp  here.  A  contract  must  be  avail- 
able b}'  the  law  of  the  place  where  it  is  entered  into,  or  it  is  void  all  the 
world  over.  But  I  must  have  more  distinct  evidence  of  the  law  of 
Surinam  upon  this  subject  than  the  parol  examination  of  a  merchant. 
The  law  being  in  writing,  an  authenticated  cop}-  of  it  ought  to  be  pro- 
duced. Although  this  gentleman  supposes  that  it  applies  to  all  agree- 
ments, it  ma}'  possibly  contain  an  exception,  like  our  own  stamp  act,  as 
to  agreements  for  the  sale  of  goods,  wares,  and  merchandises.  In  the 
case  of  Bohtlingk  v.  Inglis,  3  East,  381,  and  see  1  East,  515,  respect- 
ing the  right  to  stop  in  transitu  iu  Russia,  Lord  Kenyon  required  the 


452  BCUDDER   V.   UNION    NATIONAL    BANK.  [CHAP.  X. 

written  law  of  Russia  upon  this  subject  to  be  given  in  evidence.  I 
will  therefore  admit  this  agreement  to  be  read,  unless  you  prove  in  the 
same  way  that  by  the  law  of  Surinam  a  stamp  was  necessary  to  give  it 
validity. 

The  agreement  was  read  accordingly,  but  did  not  apply  to  the  goods 
in  question  ;  and  the  plaintiff  had  a  verdict.-^ 


SCUDDER   V.    UNION  NATIONAL   BANK. 

Supreme  Court  of  the  United  States.     1875. 

[Reported  91  United  States,  406.] 

Hunt,  J.'^    Upon  the  merits,  the  case  is  this :  The  plaintiff  below 

sought  to  recover  from  the  firm  of  Henry  Ames  &  Co.,  of  St,  Louis, 

Mo.,  the  amount  of  a  bill  of  exchange,  of  which  the  following  is  a  copj', 

viz. : — 

"  Chicago,  July  7,  1871. 

"  $8,125.00. 

"  Pay  to  the  order  of  Union  National  Bank  eight  thousand  one  hun- 
dred and  twenty-five  dollars,  value  received,  and  charge  to  account  of 

"  Leland  &  Harbach. 

"  To  Messrs.  Henry  Ames  &  Co.,  St.  Louis,  Mo." 

By  the  direction  of  Ames  &  Co.,  Leland  &  Harbach  had  bought  for 
them,  and  on  the  seventh  day  of  July,  1871,  shipped  to  them  at  St. 
Louis,  five  hundred  barrels  of  pork,  and  gave  their  check  on  the  Union 
Bank  to  Hancock,  the  seller  of  the  same,  for  $8,000. 

Leland  &  Harbach  then  drew  the  bill  in  question,  and  sent  the  same 
by  their  clerk  to  the  Union  Bank  (the  plaintiff  below)  to  be  placed  to 
their  credit.  The  bank  declined  to  receive  the  bill,  unless  accompanied 
by  the  bill  of  lading  or  other  security.  The  clerk  returned,  and  re- 
ported accordingly  to  Leland  &  Harbach.  One  of  the  firm  then  directed 
the  clerk  to  return  to  the  bank,  and  sa}'  that  Mr.  Scudder,  one  of  the 
firm  of  Ames  &  Co.  (the  drawees),  was  then  in  Cliicago,  and  had  au- 
thorized the  drawing  of  the  draft ;  that  it  was  drawn  against  five  luin- 
dred  barrels  of  pork  that  day  bought  by  Leland  &  Harbach  for  them, 

1  If  tlie  law  of  the  place  nf  contrartini^  makes  an  unstamped  agreement  void,  suit 
cannot  be  hrought  upon  it  in  any  jurisdiction.  Alves  v.  Hodgson,  7  T.  II.  241  ;  Satter- 
thwaite  i;.  Doughty,  Bushee,  314;  Fant  v.  Miller,  17  Gratt.  47  (semble).  But  if  the 
agreement  by  the  law  of  the  place  of  contracting  cannot  bo  received  in  evidence,  but 
is  otherwise  valid,  suit  may  be  brought  upon  it  elsewhere.  Bristow  v.  Sequeville,  5 
Ex.  275;  Fant  v.  Miller,  17  Grat.  47;  Kennels  v.  Dearslay,  P.-\sic.  Beige,  1877,  2,  146. 
The  requirement  cjf  registration  at  the  place  of  contracting  is  treated  in  the  same 
way.  Ex  parte  Melbourn,  L.  R.  6  Ch.  64.  See  Gucpratte  v.  Young,  4  De  G.  &  Sm. 
217. —  Ed. 

2  Part  of  the  opinion  only  is  given.  —  Ed. 


SECT.  II.]  SCUDDER   V.   UNION    NATIONAL   BANK.  453 

and  duly  shipped  to  them.  The  clerk  returned  to  the  bank,  and  made 
this  statement  to  its  vice-president ;  who  thereupon,  on  the  faith  of  the 
statement  that  the  bill  was  authorized  b}-  the  defendants,  discounted 
the  same,  and  the  proceeds  were  placed  to  the  credit  of  Leland  & 
Harbach.  Out  of  the  proceeds  the  check  given  to  Hancock  for 
the  pork  was  paid  b}-  the  bank. 

The  direction  to  inform  the  bank  that  Mr.  Scudder  was  in  Chicago 
and  had  authorized  the  drawing  of  the  draft  was  made  in  the  presence 
and  in  the  hearing  of  Scudder,  and  without  objection  by  him. 

The  point  was  raised  in  various  forms  upon  the  admission  of  evi- 
dence, and  by  the  charge  of  the  judge,  whether,  upon  thi§^  state  of 
facts,  the  firm  of  Ames  &  Co.,  the  defendants,  were  liable  to  the  bank 
for  the  amount  of  the  bill.  The  jury,  under  the  charge  of  the  judge, 
held  them  to  be  liable  ;  and  it  is  from  the  judgment  entered  upon  that 
verdict  that  the  present  writ  of  error  is  brought. 

The  question  is  discussed  in  the  appellant's  brief,  and  properly,  as  if 
the  direction  to  the  clerk  had  been  given  by  Scudder  in  person.  The 
jury  were  authorized  to  consider  the  direction  in  his  name,  in  his  pres- 
ence and  hearing,  without  objection  by  him,  as  made  by  himself. 
I  The  objection  relied  on  is,  that  the  transaction  amounted  at  most  to 
a  parol  promise  to  accept  a  bill  of  exchange  then  in  existence.  It  is 
insisted  that  such  a  promise  does  not  bind  the  defendants. 

The  suit  to  recover  upon  the  alleged  acceptance,  or  upon  the  refusal 
to  accept,  being  in  the  State  of  Illinois,  and  the  contract  having  been 
made  in  that  State,  the  judgment  is  to  be  given  according  to  the  law  of 
that  State.  The  law  of  the  expected  place  of  performance,  should  there 
be  a  difference,  yields  to  the  lex  fori  and  the  lex  loci  contractus. 

In  Wharton  on  Conflict  of  Laws,  §  401  ;j>,  the  rule  is  thus  laid 
down : — 

"Obligations,  in  respect  to  the  mode  of  their  solemnization,  are  sub- 
ject to  the  rule  locus  regit  action  ;  in  respect  to  their  interpretation,  to 
the  lex  loci  contractus  ;  in  respect  to  the  mode  of  their  performance, 
to  the  law  of  the  place  of  their  performance.  But  the  lex  fori  deter- 
mines when  and  how  such  laws,  when  foreign,  are  to  be  adopted,  and, 
in  all  cases  not  specified  above,  supplies  the  applicatory  law." 

Miller  v.  Tiffany,  1  Wall.  310  ;  Chapman  v.  Robertson,  6  Paige,  634  ; 
Andrews  v.  Pond,  13  Pet.  78  ;  Lamesse  v.  Baker,  3  Wheat.  147  ;  Adams 
V.  Robertson,  37  111.  59  ;  Ferguson  v.  Fuffe,  8  C.  &  F.  121  ;  Bain  v. 
Whitehaven  and  Furness  Junction  Ry.  Co.,  3  H.  L.  Cas.  1  ;  Scott  v. 
Pilkinton,  15  Abb.  Pr.  280  ;  Story,  Confl.  Laws,  203  ;   10  Wheat.  383. 

The  rule  is  often  laid  down,  that  the  law  of  the  place  of  performance 
governs  the  contract. 

Mr.  Parsons,  in  his  "Treatise  on  Notes  and  Bills,"  uses  this  lan- 
guage :  "  If  a  note  or  bill  be  made  payable  in  a  particular  place,  it  is 
to  be  treated  as  if  made  there,  without  reference  to  the  place  at  which 
it  is  written  or  signed  or  dated."     P.  324. 

For  the  purposes  of  payment,  and  the  incidents  of  payment,  this  is 


454  ,  SCUDDER   V.   UNION    NATIONAL   BANK.  [CHAP.  X- 

a  sound  proposition.  Tlius  the  bill  in  question  is  directed  to  parties  re- 
siding in  8t.  Louis,  Mo.,  and  contains  no  statement  wlietlaer  it  is  payable 
on  time  or  at  sight.  It  is,  in  law,  a  sight  draft.  Whether  a  sight  draft 
is  payable  immediately  upon  presentation,  or  whether  days  of  grace  are 
allowed,  and  to  what  extent,  is  differently  held  in  different  States.  The 
law  of  Missouri,  where  this  draft  is  payable,  determines  that  question 
in  the  present  instance. 

The  time,  manner,  and  circumstances  of  presentation  for  acceptance, 
or  "protest,  the  rate  of  interest  when  this  is  not  specified  in  tliH  hill 
(Young  V.  Harris,  14  B.  Men.  556  ;  Parry  v.  Ainsworth,  22  Barb.  118), 
are  points  connected  with  the  payment  of  the  bill ;  and  are  also  instances 
to  illustrate  the  meaning  of  the  rule,  that  the  place  of  perfoi'mance  gov- 
erns  the  bill;__ 

The  same  author,  however,  lays  down  the  rule,  that  the  place  of 
making  the  contract  governs  as  to  the  formalities  necessar>^  to  the 
vididity  of  the  co.n.tijiiLt-  P.  317.  Thus,  whether  a  contract  shall  be  in 
■writing,  or  ma\'  be  made  by  parol,  is  a  formality  to  be  deterniined  by" 
the  law  of  the  place  where  it  is  made.  If  valid  there,  the  contract  is 
binding,  although  the  law  of  the  i)lace  of  performance  may  require  the 
contract  io  bt;  in  wiiting.     Dacosta  v.  Hatch,  4  Zab.  319. 

So  when  a  note  was  indorsed  in  New  York,  although  drawn  and  made 
payable  in  France,  the  indorsee  may  recover  against  the  payee  and  in- 
dorser  upon  a  failure  to  accept,  although  by  the  laws  of  France  such 
suit  cannot  be  maintained  until  after  default  in  paj'ment.  Aymar 
V.  Shelden,   12  Wend.  439. 

So  if  a  note,  payable  in  New  York,  be  given  in  the  State  of  Illinois 
for  money  there  lent,  reserving  ten  per  cent  interest,  which  is  legal  in 
that  State,  the  note  is  valid,  although  but  seven  per  cent  interest  is 
allowed  by  the  laws  of  the  former  State.  Miller  v.  Tiffany,  1  Wall. 
310  ;  Depeau  v.  Humphr}-,  20  Mart.  1  ;  Chapman  v.  Robertson,  6  Paige, 
634  ;  Andrews  c.  Pond,  13  Pet.  Go. 

Matters  l^earing  upon  the  execution,  the  interpretation,  and  the  valid- 
ity of  a  contract  are  determined  by  the  law  of  the  place  where  the  con- 
tract is  made.  Matters  connected  with  its  performance  are  regulated 
b}'  the  law  prevailing  at  the  place  of  performance.  Matters  respecting 
the  remedy,  such  as  the  bringing  of  suits,  admissibility  of  evidence, 
statutes  of  limitation,  depend  upon  the  law  of  the  place  where  the  suit 
is  brought. 

A  careful  examination  of  tlie  well-considered  decisions  of  this  country 
and  of  England  will  sustain  these  jjositions. 

There  is  no  statute  of  the  State  of  Illinois  that  requires  an  acceptance 
of  a  bill  of  exchange  to  be  in  writing,  or  that  prohibits  a  parul  promise 
to  accept  a  l)ill  of  exchange :  on  the  contrary,  a  parol  acceptance  and  a 
parol  promise  to  accept  are  valid  in  that  State,  and  the  decisions  of  its 
highest  court  hold  that  a  parol  promise  to  accept  a  bill  is  an  acceptance 
thereof.  If  this  be  so,  no  question  of  jurisdiction  or  of  conflict  of  laws 
arises.     The  contract  to  accept  was  not  only  made  in  Illinois,  but  the 


SECT.  II.]  HUNT  V.   JONES.  455 

bill  was  then  and  there  actually  accepted  in  Illinois,  as  perfectly  as  if 
Mr.  8cudder  had  written  an  acceptance  across  its  face,  and  signed 
thereto  the  name  of  his  firm.  The  contract  to  accept  the  bill  was  not 
to  be  performed  in  Missouri.  It  had  already,  by  the  promise,  been 
performed  in  Illinois.  The  contract  to  pay  was,  indeed,  to  be  per- 
formed in  Missouri ;  but  that  was  a  different  contract  from  that  of 
acceptance.  Kelson  v.  First  Nat.  Bank,  48  111.  39  ;  Mason  v.  Dousay, 
35  111.  424  ;  Jones  v.  Bank,  34  111.  319. 

Unless  forbidden  by  statute,  it  is  the  rule  of  law  generally,  that  a 
promise  to  accept  an  existing  bill  is  an  acceptance  thereof,  whether  the 
promise  be  in  writing  or  b}-  parol.  Wynne  v.  Raikes,  5  East,  514; 
Bank  of  Ireland  v.  Archer,  11  M.  &  W.  383  ;  How  v.  Loring,  24  Pick. 
254  ;  Ward  v.  Allen,  2  Met.  53  ;  Bank  v.  Woodruff,  34  Vt.  92  ;  Spald- 
ing V.  Andrews,  12  Wright,  411  ;  Williams  v.  Winans,  2  Green  (N.  J.), 
309  ;  Storer  v.  Logan,  9  Mass.  56  ;  Byles  on  Bills,  §  149  ;  Barney 
V.  Withington,  37  N.  Y.  112.     See  the  Illinois  cases  cited,  supra.  .  .  . 

These  principles  settle  the  present  case  against  the  appellants. 

It  certainly  does  not  aid  their  case,  that  after  assuring  the  l)ank, 
through  the  message  of  Leland  &  Harbach,  that  the  draft  was  drawn 
against  produce  that  day  shipped  to  the  drawees,  and  that  it  was 
drawn  b}-  the  authority  of  the  firm  (while,  in  fact,  the  produce  was 
shipped  to  and  received  and  sold  b}'  them),  and  that  the  bank  in  reli- 
ance upon  this  assurance  discounted  the  bill,  Mr.  Scudder  should  at 
once  have  telegraphed  his  firm  in  St.  Louis  to  dela}-  payment  of  the 
draft,  and,  by  a  subsequent  telegram,  should  have  directed  them  not  to 
pay  it.  The  judgment  must  he  affirmed.^ 


HUNT   V.    JONES. 

Supreme  Court  of  Rhode  Island.     1379. 

[Reported  12  Rhode  Island,  265.] 

DuRFEE,  C.  J.  This  is  assumpsit  for  damages  for  breach  of  con- 
tract. On  trial  to  the  jury  the  plaintiff  submitted  testimony-  to  show 
that  on  20th  of  July,  1876,  at  Providence,  in  Rhode  Island,  he  sold  to 
the  defendant,  or  entered  into  an  oral  agreement  with  the  defendant  to 
sell  him,  two  hundred  barrels  of  Canaan  Hme  at  $1.60  per  barrel, 
to  be  dehvered  at  the  foot  of  Spring  Street  in  the  city  of  New  York, 
the  lime  then  being  in  process  of  manufacture  in  Canaan,  Conn.,  and 
that  subsequently,  in  pursuance  of  the  contract,  the  lime  was  shipped 
to  and  delivei-ed  at  the  foot  of  Spring  Street  in  New  York  City,  and 
notice  given  of  its  delivery  to  the  defendant,  but  that  the  defendant 
refused  to  accept  it.  The  lime  was  afterwards  sold  at  a  loss  and  this 
action  brought  to  recover  damages. 

I  Ace.  Matthews  v.  Murchison,  17  Fed.  760;  Mason  v.  Dousay,  35  111.  424.  —Ed. 


456  HUNT    V.   JONES.  [chap.  X. 

The  defendant  submitted  in  evidence  a  statute  of  the  State  of  New 
York,  which  provides  that  "every  contract  for  the  sale  of  any  goods, 
chattels,  or  thing  in  action,  for  the  price  of  fifty  dollars  or  more,  shall 
be  void,  unless  a  note  or  memorandum  of  such  contract  be  in  writing 
and  be  subscribed  by  the  parties  to  be  charged  thereby,  or  unless  the 
buyer  shall  accept  and  receive  part  of  such  goods  or  the  evidences,  or 
some  of  them,  of  such  things  in  action,  or  unless  the  buyer  shall  at 
the  time  pay  some  part  of  the  purchase-money." 

The  defendant  thereupon  requested  the  court  to  charge  the  jury,  that 
as  the  contract  was  to  be  performed  in  the  State  of  New  York,  its 
validity  and  construction  were  to  be  judge<l  by  the  law  of  the  place  of 
performance,  to  wit.  New  York,  and  that  therefore,  the  contract  being 
void  in  New  York,  the  plaintiff  could  not  recover.  The  court  refused 
to  charge  as  requested,  but  did  charge  that  the  plaintiff  could  recover 
upon  the  contract,  if  otherwise  entitled,  notwithstanding  the  contract 
was  not  in  writing,  the  contract  being  valid  in  Rhode  Island,  the  place 
where  it  was  made.  To  this  charge  the  defendant  excepted,  and  now 
petitions  for  a  new  trial,  the  jury  having  returned  a  verdict  against  him. 

The  case  presents  the  question  whether  the  validity  of  a  contract,  in 
respect  of  the  form  or  mode  of  contracting,  depends  on  the  law  of  the 
place  where  it  is  made  or  on  the  law  of  the  place  where  it  is  to  be  per- 
formed ;  or,  indeed,  whether  the  contract,  if  it  conforms  to  either  law, 
may  not  be  enforced.  No  question  is  made  but  that  the  contract  in 
suit  is  valid  in  Rhode  Island,  if  resort  may  be  had  to  the  law  of  Rhode 
Island  to  determine  its  validity. 

There   is  some  conflict  and  confusion  of  authority  on  the  question, 
but  in  the  recent  decision  of  Scudder  v.  Union  National  Hank,  1  Otto, 
406,  Mr.  Justice  Hunt,  in  delivering  the  unanimous  judgment  of  the 
Supreme  Court  of  the  United  States,  holds  the  following  language,  to 
wit:  "Matters  bearing  upon  tho.  execut.inp,  the,  interpretation,  and  the 
vaUdlty  of  a  contract,  are  detect; mined  by  the  law  of  the   place  where 
the  coiitract  is  made.     ^Matters   connected  wfth  its    performance    are_ 
reguTated  by  the  law  prevailing  at  the  place  of  performance.     Matters" 
rfisp-ecTmg  the^remedv,  such  as  the  bringing  of  suits,  admissibility  of 
evidence,  statutes  of  limitation^depend  upon  the  law  of  the  place  where" 
the  suitTrbfought2^ccc)rdingly,  in  Scudder  v.  Union  National  Kank 
the  couTtlTeTinh'at  a  bill  of  exchange  drawn  in  Illinois  upon  a  firm  in 
Missouri,  and   orally  accepted  in  Illinois,  where  such  an  acceptance  is 
valid,  was  binding   upon  the  drawees,  though  an   acceptance  in  Mis- 
souri woidd  not  have  been  binding  unless  made  in  writing. 

Where  a  contract  is  ^ered  j^nto  in  one  State  to  be  perfgrmed  in 
anottTCTTTHcrc  arcntTias  been  said,  twojoci  contnictus^,\hc  locus  cele- 
'l^aiLcQJiimsh^s  and"tE"e  locus' solutioms  ;  and  the~  law  of  Lhc  former 
governs  the  iiiterp relation.  n7iture,"and  validity  of  tfte_coniract,-that  of 
--the  laffcFTts  ijerfomiaiMc.  A  t:cmfa^mj-HTmrCverrmav  be  valid  by  the 
law  of  both  places,  and  yet  failpraHieaTlyrifthe  lex  fori  does  not  per- 
mit its  TJnTorceme'nt.     teruii.v  rrTTFown,  UiXJ.  B^.  801. 


SECT.  n.J  HUNT   V.   JONES.  ^^'^ 

The  rule  thus  laid  down,  considered  as  a  rule  for  personal  contracts, 
though  it  is  at  variance  with  many  dicta  and  decisions,  is  well  sup- 
ported on  authority.  Dacosta  v.  Davis,  24  N.  J.  Law,  319  ;  Cooper 
V.  Waldegrave,  2  Beav.  282;  Vidal  v.  Thompson,  11  Mart.  La.  23; 
Aymar  v.  Sheldon,  12  Wend.  439  ;  Chapman  v.  Robertson,  6  Paige, 
627,  634  ;  Bain  v.  Whitehaven,  &c.  Railway  Co.,  3  H.  L.  1  ;  Van  Reims- 
dyk  V.  Kane,  1  Gall.  371  ;  Wharton,  Conflict  of  Laws,  §  401,  p.  676  ; 
Story,  Conflict  of  Laws,  §  234,  seq. 

There  are  cases  which  go  farther  and  hold  that  a  contract  made  in 
good  faith  in  one  State  to  be  performed  in  another,  will  be  upheld  if  it 
conforms  to  the  law  of  either  State.  In  making  such  contracts,  it  is 
argued,  the  parties  may  have  in  view  either  the  law  of  the  State  where 
the  contract  is  made  or  the  law  of  the  State  where  it  is  to  be  performed  ; 
and  therefore  the  contract,  if  made  in  good  faith  without  any  design  to 
evade  the  law,  ought  to  be  allowed  and  enforced  according  to  its  pre- 
sumable intent,  ut  res  magis  valeat  quam  2->ereaL  This  rule  has  been 
applied  especially  to  stipulations  for  interest  on  contracts  for  the  pay- 
ment of  money,  and  is  commended  by  Professor  Parsons  as  reasonable 
and  just.  Fislier  i\  Otis,  3  Chand.  83  ;  Depeau  v.  Humphreys,  8  Mart. 
N.  s.  La.  1 ;  Cromwell  v.  County  of  Sac,  6  Otto,  51  ;  Bolton  v.  Street, 
3  Cold.  31  ;  2  Parsons,  Contracts,  583  ;  Wharton,  Conflict  of  Laws, 
§  507. 

The  case  at  bar,  however,  involves  the  validity  of  the  contract  in 
matter  of  form  rather  than  of  substance,  and  seems  to  fall  more  appro- 
priately under  the  former  rule  than  the  latter;  but  it  is  immaterial 
whether  the  former  or  the  latter  is  applied,  for  the  contract  in  suit  is 
valid  under  either  of  them. 

We  think  the  charge  of  the  court  should  be  sustained  and  a  new  trial 
denied.  Petition  dismissed.^ 

1  Ace.  Hubbard  v.  Exchange  Bank,  72  Fed.  234  ;  Park  Brothers  &  Co.  v.  Kelly  Axe 
Mfg.  Co.,  49  Fed.  618  ;  Houghtaliug  r.  Bell,  19  Mo.  84  ;  Dacosta  r.  Davis,  4  Zab.  319  ; 
7  Clunet,  480  (French  Cass.  24  Aug.  '80).  So  of  a  contract  for  the  sale  of  real  estate, 
valid  where  made.  Wolf  v.  Burke,  18  Col.  264,  32  Pac.  427  ;  Miller  v.  "Wilson,  146  111. 
523,  34  N.  E.  1111. 

Conversely,  if  the  statute  of  frauds  at  the  place  of  contracting  deprives  the  con- 
tract of  validity,  it  cannot  be  enforced  in  another  State.  Denny  v.  Williams,  5  All.  1  ; 
AUshouse  r.  Ramsay,  6  Whart.  331. 

On  the  other  hand,  if  the  statute  of  frauds  of  the  forum  goes  to  the  remedy,  it  will 
be  applied  to  contracts  made  elsewhere  and  valid  where  made.  Leroux  v.  Brown,  12 
C.  B.  801 ;  Heaton  v.  Eldridge,  56  Oh.  S.  87,  46  N.  E.  638.  — Ed. 


458  HALL  V.   COKDELL.  [CHAP.  X. 


HALL  V.   CORDELL. 

Supreme  Court  of  the  United  States.     1891. 
[Reported  142  United  States,  116.] 

The  case  was  stated  by  the  court  as  follows  :  — 

This  was  an  action  of  assumpsit.  It  was  based  upon  an  alleged 
verbal  agreement  made  on  or  about  April  1,  1886,  at  Marshall,  Mis- 
souri, between  the  defendants  in  error,  plaintiffs  below,  doing  business 
at  that  place  as  bankers,  under  the  name  of  Cordell  &  Dunnica,  and 
the  plaintiffs  in  error,  doing  business  at  the  Union  Stock  Yards,  Chicago, 
Illinois,  under  the  name  of  Hall  Bros.  &  Co.  There  was  a  verdict  and 
judgment  in  favor  of  the  plaintiff's  for  $5,785.79. 

The  alleged  agreement  was  in  substance  that  Hall  Bros.  &  Co.  would 
accept  and  pay,  or  pay  on  presentation,  all  drafts  made  upon  them  by 
one  George  Farlow,  in  favor  of  Cordell  &  Dunnica,  for  the  cost  of  any 
live  stock  bought  by  Farlow  and  shipped  b}-  him  from  ^Missouri  to  Hall 
Bros.  &  Co.  at  the  Union  Stock  Yards  at  Chicago. 

There  was  proof  before  the  jury  tending  to  show  that,  on  or  about 
Jul}'  13,  1886,  Farlow  shipped  from  jVIissouri  nine  car-loads  of  cattle 
and  one  car-load  of  hogs,  consigned  to  Hall  Bros.  &  Co.  at  the  Union 
Stock  Yards,  Chicago ;  that  such  cattle  and  hogs  were  received  by 
the  consignees,  and  by  them  were  sold  for  account  of  Farlow  ;  that 
out  of  the  proceeds  they  retained  the  amount  of  the  freight  on  the  ship- 
ment, the  expenses  of  feeding  the  stock  on  the  wa}-  and  at  the  stock 
yards,  the  charges  at  the  yards  and  of  the  persons  who  came  to  Chicago 
with  the  stock,  the  commissions  of  the  consignees  on  the  sale,  the 
amount  Farlow  owed  them  for  moneys  paid  on  other  drafts  over  and 
above  the  net  proceeds  of  live  stock  received  and  sold  for  him  on  the 
market,  and  two  thousand  dollars  due  from  Farlow  to  Hall  Bros.  &  Co. 
on  certain  past-due  promissor}'  notes  given  for  money  loaned  to  him  ; 
that  at  the  time  of  the  above  shipment  Farlow,  at  Marshall,  Missouri, 
the  place  of  agreement,  made  his  draft,  of  date  July  13,  1880,  upon 
Hall  Bros.  &  Co.,  at  the  Union  Stock  Yards.  Chicago,  in  favor  of 
Cordell  &  Dunnica  for  $11,274,  the  draft  stating  that  it  was  for  the 
nine  car-loads  of  cattle  and  one  car-load  of  hogs ;  that  this  draft  was 
discounted  by  Cordell  &  Dunnica,  and  the  proceeds  placed  to  Farlow's 
credit  on  their  liooks  ;  that  tlie  proceeds  were  paid  out  bv  the  plaintiffs 
on  his  checks  in  favor  of  the  parties  from  wiiom  he  purchased  the 
stock  mentioned  in  the  draft,  and  for  the  expenses  incurred  in  the 
shipment ;  that  the  draft  covered  only  the  cost  of  the  stock  to  Farlow  ; 
that  upon  its  presentation  to  Hall  Bros.  &  Co.  the}-  refused  to  pay  it, 
and  tlie  same  was  protested  for  non-payment ;  and  that,  subsequently, 
Cordell  &  Duiinicu  received  from  Hall  I»ros.  &  Co.  only  the  sum  of 
S5.03G.55,  tlie  balance  of  the  proceeds  of  the  sale  of  the  above  cattle 
and  hogs,  consigned  to  them  as  stated,  after  deducting  the  amounts 


SECT.  II.]  HALL   V.   CORDELL.  459 

retained  by  the  consignees,  out  of  such  proceeds,  on  the  several  a\,count3 
above  mentioned. 

The  contract  sued  upon,  having  been  made  in  Missouri,  the  defend- 
ant contended  that  it  was  invalid  under  the  statutes  of  that  State,  whlcK' 
^re'cited  in  the' opinion  of  tne  court,  infra.,  and  could  not  be  made  th^ 
basis  for  a  recover}- in  Illinoisr  This  contention  being  overruled,  the 
defendant  excepted,  and  (judgment  having  been  given  for  the  plaintiff) 
sued  out  this  writ  of  error. ^ 

Harlax,  J.  Our  examination  must  be  restricted  to  the  questions 
of  law  involved  in  the  rulings  of  the  court  below.  And  the  only  one 
which,  in  our  judgment,  it  is  necessary  to  notice  is  that  arising  upon 
the  instructions  asked  by  the  defendant,  and  wliich  the  court  refused  to 
wive,  to  the  effect  that  the  agreement  in  question,  having  been  made  in 
Missouri,  and  not  having  been  reduced  to  writing,  was  invalid  under 
the  statutes  of  that  State,  and  could  not  be  recognized  in  Illinois  as  the 
basis  of  an  action  there  against  the  defendants.   .   .  . 

The  contention  of  the  plaintiffs  in  error  is  that  the  rights  of  the 
parties  are  to  be  determined  by  the  law  of  the  place  where  the  al- 
leged agreement  was  made.     If  this  be  so,  it  may  be  that  the  judgment 
could  not  be  sustained;  for  the  statute  of  Missouri  expressly  declares 
that  no  person,  within  that  State,  shall  be  charged  as  an  acceptor  of  a 
bill  of  exchange,  unless  his  acceptance  be  in  writing.     And  the  stat- 
ute, as  construed  by  the  highest  court  of  Missouri,  equally  embraces, 
within  its  inhibitions,  an  action  upon  a  parol  promise  to  accept  a  bill, 
except  as  provided  in   section  537.      Flato  v.  Mulhall,  72  Mo.  522, 
526  ;  Rousch  v.  Duff,  35  Mo.  312,  314.     But  if  the  law  of  Missouri 
governs,  this  action  could  not  be  maintained  under  that  section  ;  be- 
cause, as  held  in  Flato  v.  Mulhall,  above  cited,  the  plaintiffs,  being  the 
payees  in  the  bill  drawn  by  Farlow  upon  Hall  Bros.  &  Co.,  could  not, 
within  the  meaning  of  the  statute,   be  said  to  have  '"'negotiated"'  it. 
The  Missouri  statute  is  a  copy  of  a  New  York  statute,  in  respcct  to 
which  Judge  Duer,  in  Blakeston  r.   Dudley,  5  Duer,  373,   377,  said: 
"  We  think,  that  to  negotiate  a  bill  can  only  mean  to  transfer  it  for 
value,  and  that  it  is  a  solecism  to  say  that  a  bill  has  I)een  negotiated 
by  a  pa3-ee,  who  has  never  parted  with  its  ownership  or  possession. 
The  fact  that  the  plaintiffs  had  given  value  for  the  bill  when  they  re- 
ceived it,  only  proves  its  negotiation  by  the  drawer  —  its  negotiation 
to,  and  not  by  them.  .   .   .  Their  putting  their  names  upon  the  back  of 
the  bill  was  not  an  indorsement,  but  a  mere  authority  to  the  agent  whom 
they  employed,  to  demand  its  acceptance  and  payment.     The  manifest 
intention  of  the  legislature  in  §  10  [similar  to  §  537  of  the  Missouri 
statutes]  was   to  create  an  exception  in  favor  of  those  who,   having 
transferred  a  bill  for  value,  on  the  faith  of  the  promise  of  the  drawee  to 
accept  it,  have,  in  consequence  of  Ids  refusal  to  accept,  been  rendered 
liable  and  been  subjected  to  damages,  as  drawers  or  indorsers."     The 
plaintiffs  in  error,  therefore,  cannot  rest  their  case  upon  section  537. 

^  Arguments  uf  counsel  and  part  of  the  opinion  are  omitted.  —  Ed. 


460  HALL  V.    CORDELL.  [CHAP.  X. 

We  are,  however,  of  opinion  that,  upon  principle  and  authorit}-,  the 
rights  of  the  parties  are  not  to  be  determined  by  the  law  of  Missouri. 
The  statute  of  that  State  can  have  no  application  to  an  action  brought 
to  charge  a  person  in  Illinois,  upon  a  parol  promise,  to  accept  and  pa}[_^ 
a  bill  of  exchange  payable  in  Illinois.  The  agreement  to  acce^jt  a_nd 
pay,  or  to  pay  upon  presentation,  was  to  be  entirely  performed  in  lUi-^ 
nois,  which  was  the  State  of  the  residence  and  place  of  business  of  the 
defendants.  They  were  not  bound  to  accept  or  pay  elsewhere  than  at 
the  place  to  which,  by  the  terms  of  the  agreement,  the  stock  was  to  be 
shipped.  Nothing  in  the  case  shows  that  the  parties  had  in  view,  in 
respect  to  the  execution  of  the  contract,  any  other  law  than  the  law  of 
the  place  of  performance.  That  law,  consequently,  must  determine  the 
rights  of  the  parties.  Coghlan  v.  South  Carolina  Railroad  Co.,  142  U.  S. 
101,  and  the  authorities  there  cited.  In  this  connection  it  is  well  to 
state  that  in  New  York  &  Virginia  State  Stock  Bank  y.  Gibson,  5  Duer, 
574,  583,  a  case  arising  under  the  statute  of  New  York,  above  referred 
to,  the  court  said:  "Those  provisions  manifestly  embrace  all  bills, 
wherever  drawn,  that  are  to  be  accepted  and  paid  within  this  State,  and 
were  the  terms  of  the  statute  less  explicit  than  they  are,  the  general 
rule  of  law  would  lead  us  to  the  same  conclusion:  tjiat  the  validity,  of 
a  promise  to  accept  a  bill  of  exchange  depends  upon  the  law  of  the 
place  where  the  bill  is  to  be  accepted  and  paid,"  citing  Boyce  v. 
Edwards,  4  Pet.  111. 

Looking,  then,  at  the  law  of  Illinois,  there  is  no  difficulty  in  holding 
that  the  defendants  were  liable  for  a  breach  of  their  parol  agreement, 
made  in  Missouri,  to  accept  and  pay,  or  to  pay  upon  presentation,  in 
Illinois,  the  bills  drawn  by  Farlow,  i)ursuant  to  that  agreement,  in  favor 
of  the  plaintiffs.  It  was  held  in  Scudder  v.  Union  National  Bank,  91 
U.  S.  406,  413,  that,  in  Illinois,  a  parol  acceptance  of,  or  a  parol  prom- 
ise to  accept,  upon  a  sufficient  consideration,  a  bill  of  exchange,  was 
binding  on  the  acceptor.  Mason  v.  Donsay,  35  III.  424,  433  ;  Nelson 
V.  First  Nat.  Bank  of  Chicago,  48  111.  36,  40;  Sturgis  v.  Fourth 
National  Bank  of  Chicago,  75  III.  595  ;  St.  Louis  National  Stock 
Yards  v.  O'Reilly,  85  III.  546,  551. 

The  views  we  have  expressed  were  substantially  those  upon  which 
the  court  below  proceeded  in  its  refusal  of  the  defendants'  requests  for 
instructions,  as  well  as  in  its  charge  to  the  jury.  The  suggestion  that 
there  was  a  material  variance  between  the  averments  of  the  original 
and  amended  declaration,  and  the  proof  adduced  by  the  plaintiffs,  is 
without  foundation.  The  real  issue  was  fairly  submitted  to  the  jury, 
and  their  verdict  niust  stand.  Judgment  affirjned. 

Mr.  Justice  Gray  was  not  present  at  the  argument  and  did  not  par- 
ticipate in  the  decision.^ 

1  Ace.  Wilsou  V.  Lewistoii  Mill  Co.,  150  N.  Y.  3U.  44  N.  E.  959.  —Ed. 


SECT.  III. J  EOBtNSON   V.  BLAND.  461 


SECTION  III. 

OBLIGATION. 


ROBINSON   V.    BLAND. 
King's  Bench.     1760. 
[Reported  2  Burrow,  1077.] 

This  was  a  case  reserved  at  Nisi  Prius  at  Westminster  Hall,  before 
Lord  Mansfield,  22d  May,  1760. 

The  action  was  an  action  upon  tlie  case  upon  several  promises,  and 
the  declaration  contained  three  counts.  The  first  count  was  upon  a 
bill  of  exchange,  drawn  at  Paris  by  the  intestate,  Sir  John  Bland,  on 
the  31st  of  August,  1755,  and  bearing  that  same  date,  on  himself,  in 
England,  for  the  sum  of  £672  sterling,  payable  to  the  order  of  the  plain- 
tiff ten  days  after  sight,  value  received  and  accepted  by  the  said  Sir 
John  Bland.  The  second  count  was  for  £700,  moneys  lent  and  ad- 
vanced by  the  said  plaintiff  to  the  said  Sir  John  Bland,  at  his  request. 
The  third  count  was  for  £700,  moneys  had  and  received  b}'  the  said  Sir 
John  Bland,  to  and  for  the  use  of  the  plaintiff.  And  the  plaintiff's 
damage  is  laid  at  £800. 

The  defendant  pleaded  the  general  issue,  "  That  Sir  John  Bland  did 
not  undertake  and  promise,"  etc.,  and  issue  was  joined  thereon. 

The  verdict  was  found  for  the  plaintiff,  and  £672  given  for  damages, 
subject  to  the  following  case  stated  for  the  opinion  of  the  court,  on  the 
following  facts  proved  and  admitted,  viz. : 

That  the  bill  of  exchange  was  given  at  Paris  for  £300  there  lent  by 
the  plaintiff  to  Sir  John  Bland,  at  the  time  and  place  of  play  ;  and  for 
£372  more  lost  at  the  same  time  and  place,  by  Sir  John  Bland,  to  the 
plaintiff,  at  play. 

That  the  play  was  very  fair  ;  and  there  is  not  any  imputation  whatso- 
ever on  the  plaintiff's  behavior. 

That  there  were  several  gentlemen  and  persons  of  fashion  then  and 
there  at  play,  besides  the  plaintiff  and  Sir  John  Bland. 

That  in  France,  mone}-  lost  at  play,  between  gentlemen,  may  be  re- 
covered, as  a  debt  of  honor,  before  the  marshals  of  France,  who  can 
enforce  obedience  to  their  sentences  by  imprisonment ;  though  such 
money  is  not  recoverable  in  the  ordinary  course  of  justice. 

That  money  lent  to  play  with,  or  at  the  time  and  place  of  play,  may 
be  recovered  there,  as  a  debt,  in  the  ordinary  course  of  justice,  there 
being  no  positive  law  against  it. 

That  Sir  John  Bland  was,  and  the  plaintiff  is,  a  gentleman. 


462  ROBINSON    V.    BLAND.  [CHAP.  X 

The  question  was,  Whether,  under  these  circumstances,  the  plaintifiC 
is  entitled  to  recover  anything,  and  wliat,  against  the  defendant? 

It  was  first  argued  on  Tuesday,  17th  June  last,  by  Mr.  Serj,  Heioitt 
for  the  plaintiff,  and  Mr,  Blackstone  for  the  defendant ;  and  again, 
yesterday-  and  to-day,  b}'  Mr.  Wedderburn  for  the  plaintiff,  and  Mr. 
Coxe  for  the  defendant. 

Upon  the  conclusion  of  this  second  argument, 

Lord  Mansfield  said,  that  in  the  present  case,  the  facts  stated  scarce 
leave  room  for  any  question  ;  because  the  law  of  France  and  of  Eng- 
land is  the  same. 

The  first  question  is.  Whether  the  plaintiff  is  entitled  to  recover  upon 
this  bill  of  exchange,  by  force  of  the  writing. 

The  second  question  is.  Whether  he  is  entitled  to  recover  upon  the 
original  consideration  and  contract,  by  the  justice  and  equit}-  of  his 
case,  exclusive  of  any  assistance  from  the  bill  of  exchange,  and  taking 
that  to  be  a  void  security. 

As  to  the  first  question,  the  defendant  has  objected  :  "That  the  con- 
sideration of  the  bill  of  exchange  is  whoU}'  mone}'  won  and  lent  at 
play.  Therefore,  by  force  of  the  writing,  the  plaintiff  cannot  by  the 
law  of  England  recover,  such  securitv  being  utterly  void."  And,  no 
doubt,  the  law  of  England  is  so. 

There  are  three  reasons  why  the  plaintiff  cannot  recover  here,  upon 
this  bill  of  exchange. 

First,  The  parties  had  a  view  to  the  laws  of  England.  The  law  of 
the  place  can  never  be  the  rule,  where  the  transaction  is  entered  into 
with  an  express  view  to  the  law  of  another  country,  as  the  rule  by 
which  it  is  to  be  governed.  Huberi  Pr.ielectiones,  lib.  1,  tit.  3,  p.  34, 
is  clear  and  distinct  :  "  Veruntamen,  etc.  locus  in  quo  contractus,  etc. 
potius  considerand',  etc.  se  obligavit."     Voet  speaks  to  the  same  effect. 

Now  here,  the  paj-ment  is  to  be  in  England  ;  it  is  an  English  security, 
and  so  intended  b}-  the  parties. 

Second  reason :  Mr.  Coxe  has  argued  ver}-  rightl}' :  "  That  Sir 
John  Bland  could  never  be  called  upon  abroad  for  pa3'ment  of  tliis 
bill,  till  there  had  been  a  wilful  default  of  payment  in  P^ngland."  The 
bill  was  drawn  b}'  Sir  John  Bland,  on  himself,  in  England,  payable  ten 
days  after  sight. 

In  every  disposition  or  contract  where  the  subject-matter  relates 
locally  to  England,  the  law  of  England  must  govern,  and  must  liave 
been  intended  to  govern.  Thus,  a  conveyance  or  will  of  lands,  a  mort- 
gage, a  contract  concerning  stocks,  must  be  all  sued  upon  in  England ; 
and  the  local  nature  of  the  thing  requires  them  to  be  carried  into  exe- 
cution according  to  the  law  here. 

Tliird  reason :  The  case  don't  leave  room  for  a  question.  For  the 
law  ot  both  countries  is  the  same.  The  consideration  of  the  Inll  of 
exchange  might,  in  an  action  upon  it,  be  gone  into  there  as  well  as 
here.  And  as  to  the  money  won  at  ['lay,  it  could  not  be  recovered  in 
any  court  of  justice  there,  notwithstantling  the  bill  of  exchange. 


SECT.  III.]  ROBINSON    V.   BLAND.  463 

This  writing  is,  as  a  security,  void  (being  for  a  gaming  debt), 
both  in  France  and  in  England.  We  naay  tliei-efore  lay  the  bill  of  ex- 
change out  of  the  case :  it  is  very  clear  the  plaintiflF  cannot  recover 
upon  that  count. 

Second  question.  Then  as  to  the  other  counts,  for  money  had  and 
received  to  the  plaintiflTs  use,  and  for  money  lent  and  advanced  to  him. 
—  Consider  it  distinctly,  as  to  each  part:  the  mone}'  won,  and  the 
mone}-  lent. 

'First,  As  to  the  mone}'  won.  B}'  the  rule  of  the  law  of  England,  no 
action  can  be  maintained  for  it. 

f  To  this  it  has  been  objected,  ''  That  the  contract  was  made  in  France. 
Therefore,  ex  comitate,  the  law  of  France  must  prevail,  and  be  the  rule 
of  determination." 

I  admit,  that  there  are  many  cases  where  the  law  of  the  place  of  the 
transaction  shall  be  the  rule  ;  and  the  law  of  England  is  as  liberal  in 
this  respect  as  other  laws  are.  This  is  a  large  field,  and  not  neces- 
sar}'  now  to  be  gone  into. 

It  has  been  laid  down  at  the  bar,  "  That  a  marriage  in  a  foreign 
country  must  be  governed  b}-  the  law  of  that  countr}'  where  the  mar- 
riage was  had ; "  which,  in  general,  is  true.  But  the  marriages  in 
Scotland,  of  persons  going  from  hence  for  that  purpose,  were  instanced 
by  way  of  example.  They  may  come  under  a  very  different  considera- 
tion, according  to  the  opinion  of  Huberus,  p.  33,  and  other  writers. 

No  such  case  has  3'et  been  litigated  in  England,  except  one,  of  a 
marriage  at  Ostend,  which  came  before  Lord  Hardwicke,  who  ordered 
it  to  be  tried  in  the  Ecclesiastical  Court ;  but  the  young  man  came  of 
age,  and  the  parties  were  married  over  again  ;  and  so  the  matter  was 
never  brought  to  a  trial. 

The  point  that  the  plaintiff  must  rest  upon  in  the  present  case  is 
this:  "The  money  was  won  in  France  ;  therefore  it  ought  to  be  gov- 
erned by  the  law  of  France ;  and  it  is  recoverable  there  before  the 
marshals  of  France,  who  can  enforce  obedience  to  their  sentence." 

The  Parliament  of  Paris  would  pay  no  regard  to  their  judgment,  nor 
carry  it  into  execution.  The  marshals  of  France  proceed  personally 
against  gentlemen,  as  to  points  of  honor,  with  a  view  to  prevent 
duelling. 

They  could  not  have  taken  cognizance  of  the  present  matter.  It  was 
not  within  their  jurisdiction.  It  was  no  breach  of  honor  in  France,  for 
the  money  was  payable  in  England  ;  and  Sir  John  Bland  could  not  be 
said  to  have  forfeited  his  honor  till  the  ten  days  were  out,  and  till  the 
money  had  been  demanded  in  England,  and  payment  I'efused  there. 
Sir  John  Bland  was  actually  dead  in  a  very  short  time  after  he  gave 
the  note.  The  marshals  of  France  can  only  proceed  personalh'  against 
the  gentleman  who  loses  the  money,  but  have  no  power  over  his  estate 
or  representatives,  after  his  death. 

Therefore,  as  to  the  monej*  won,  the  contract  is  to  be  considered  as 
void  by  the  law  of  France,  as  well  as  by  the  law  of  England ;  which 


464 


ROBINSON   V.   BLANU.  [CHAP.  X. 


makes  it  unnecessar}^  to  consider  "  how  far  the  law  of  France  ought  to 
be  regarded." 

Next,  as  to  the  money  lent.  The  sense  of  the  legislature  seems  to 
me  to  be  agreeable  to  the  cases  that  have  been  cited. 

The  act  of  16  C.  2,  c.  7,  §  3,  does  not  meddle  with  money  lent  at 
play.  But,  as  to  money  (exceeding  £100),  lost,  and  not  paid  down  at 
the  time  of  losing  it,  it  says,  "  That  the  loser  shall  not  be  compellable 
to  make  it  good  ;  but  the  contract  and  contracts  for  the  same  and  for 
every  part  thereof,  and  all  securities,  shall  be  utterly  void,  etc."  The 
words  "  contract  and  contracts  for  the  same"  are  not  in  9  Anne,  and 
I  dare  say  were  designedly  left  out:  it  only  says,  "That  all  notes, 
bills,  bonds,  judgments,  mortgages,  or  other  securities,  etc.,  for  money 
won  or  lent  at  play,  shall  be  utterly  void,"  etc. 

Here  the  money  was  fairly  lent,  without  any  imputation  whatsoever. 
Sir  John  Bland,  the  borrower  of  it,  being  in  a  foreign  country,  might 
very  naturally  have  been  distressed,  under  his  then  situation  amongst 
foreigners,  for  want  of  having  ready  money,  or  knowing  how  to  procure 
it ;  and  it  might  be  even  a  kind  and  generous  and  commendable  act 
to  lend  it  to  him  at  that  time,  to  extricate  him  from  his  difficulties,  as 
he  was  then  circumstanced.  The  jury  have  left  it  quite  open  to  the 
court  to  determine  "whether  anything,  and  what,  is  recoverable." 
As  to  the  money  won,  we  think  it  cannot  be  recovered  ;  as  to  the 
money  lent,  the  plaintiff  is  entitled  to  it,  both  by  the  law  of  England 
and  by  the  law  of  France. 

Interest  will  be  payable  upon  this  bill  after  the  expiration  of  the  ten 
days.  The  question  will  be,  "How  far  the  interest  ought  to  be  carried 
down."  It  is  generally  said,  "  to  the  day  of  the  writ  brought;  "  i.  e.  of 
commencing  the  action.  But  I  do  not  see  why  it  should  not  be  car- 
ried further ;  it  is  equally  reasonable,  it  is  the  right  of  the  party,  to 
have  it  to  the  last  act  of  the  court  ascertaining  the  sura  due. 

I  have  long  wished  for  an  opportunity  to  have  this  point  considered 
by  the  court ;  because  I  would  not  take  it  upon  myself  at  Nisi  Prius, 
to  change  what  has  commonly  been  the  practice. 

But,  as  to  this  last  point,  we  will  think  of  it  for  a  day  or  two. 

Mr.  Justice  Denison  gave  no  opinion  now,  on  this  last  point.  As  to 
the  rest,  he  said,  it  is  a  plain,  clear,  short  case  ;  it  is  determinable  by 
the  rules  of  the  common  law,  and  no  other  law. 

The  money  is  made  payable  in  England.  As  it  is  a  foreign  bill  of 
exchange,  it  must  of  course  be  dated  abroad  ;  but  it  is  to  be  paid  here 
at  home.  And  the  plaintiff  has  appealed  to  the  laws  of  England  by 
bringing  his  action  here,  and  ought  to  be  determined  by  them. 

But,  by  the  laws  of  England,  the  security  is  void  ;  which  might  have 
been  pleaded,  as  well  as  it  might  be  given  in  evidence;  and  the  de- 
fendant needed  not,  in  his  plea,  to  have  said  where  it  was  won  at  pla}-. 
And  being  a  transitory  action,  it  must  then  have  been  tried  where  the 
action  was  brought ;  and  so  it  must  have  been,  if  the  plea  liad  been 
local.     Indeed,   in  many  cases  that  might  be  put,  the  determination 


SECT.  III.]  ROBINSON    V.   BLAND.  465 

must  have  been  according  to  the  laws  of  the  place  where  the  fact  arose. 
But  the  present  case  is  not  so  ;  here,  the  security  is  void  by  the  laws 
of  the  country  w'here  he  brings  his  action  upon  it.  And  this  security 
is  one  entire  security  both  for  the  money  won  at  play,  and  the  money 
lent  at  play. 

There  is  a  distinction  between  the  contract  and  the  security.  If  part 
of  the  contract  arises  upon  a  good  consideration,  and  part  of  it  upon  a 
bad  one,  it  is  divisible.  But  it  is  otherwise  as  to  tlie  security  ;  that 
being  entire,  is  bad  for  the  whole. 

Therefore  the  plaintiff  ouglit  to  be  barred  of  this  action  upon  this  bill 
of  exchange,  as  being  a  void  securit}-  by  the  laws  of  this  country  where 
he  brings  his  action.  But  still  the  contract  remains ;  and  he  has  a 
right  to  maintain  his  action  for  so  much  of  his  demand  as  is  legal, 
which  is  the  mone}'  lent. 

As  to  the  time  of  carrying  down  the  interest,  it  may  be  proper  to 
consider  of  it  a  little  while. 

Mr.  Justice  Wiljiot.  Here  are  two  sums  demanded,  which  are 
blended  together  in  one  bill  of  exchange,  but  are  divisible  in  their 
nature. 

As  to  the  money  lent.  The  cases  that  have  been  cited  are  in  point 
"  that  it  is  recoverable."  But  if  there  were  none,  yet  I  should  be  clear 
that  the  plaintiff  may  maintain  an  action  for  that. 

As  to  contracts  being  good,  and  the  security  void :  The  contract 
ma}"  certainly  be  good,  though  the  security  be  void  ;  and  I  think  that 
this  contract  is  good,  though  the  security  is  void,  bv  the  statute  of 
9  Anne.  This  is  not  stated  to  be  mone}-  lent  to  play  with,  or  for  the 
purpose  of  pla}' ;  but  "  lent  at  the  time  and  place  of  play  "  only  ;  noth- 
ing appears  upon  this  case  to  induce  any  suspicion  that  it  was  lent  for 
any  bad  purpose. 

The  statutes  meant  to  prevent  excessive  gaming,  and  to  vacate  all 
securities  whatsoever  for  mone}-  won  at  play  ;  and  the  genuine,  true,  and 
sound  construction  of  9  Anne  is  to  understand  it  as  intended  to  prevent 
any  securities  being  taken  for  money  won  at  play,  or  lent  to  play  with, 
when  the  borrower  had  lost  all  his  ready  cash  ;  but  not  to  make  the 
contract  itself  void,  where  the  mone3'is  fairly  and  bona  fide  lent,  though 
at  the  time  and  place  of  play. 

As  to  the  interest  that  shall  be  given  to  the  plaintiff  upon  the  sum 
lent,  in  the  assessment  of  the  damages  :  This  is  an  action  that  sounds 
in  damages;  and  the  true  measure  undoubtedly  is  the  damage  which 
the  plaintiff  sustains  by  the  non-performance  of  the  contract ;  and  that 
damage  is  the  whole  interest  due  upon  the  sum  lent ;  viz.  from  the 
time  of  its  being  payable,  up  to  the  time  of  signing  the  judgment.  Nay, 
even  then  he  may  suffer  ;  he  may  still  be  kept  out  of  his  money,  by  writ 
of  error,  for  a  still  further  time.  According  to  my  memory,  Lord  Coke's 
exposition  of  the  statute  is,  that  the  "  costs  of  the  writ "  shall  extend 
to  all  the  legal  costs  of  the  suit. 

The  present  case,  notwithstanding  the  questions  that  have  been  agi- 

:30 


466  EOBINSON    V.    BLAND.  [CHAP.  X. 

tated  in  arguing  it,  comes  out  to  be  no  case  at  all,  no  point  at  all,  no 
law  at  all. 

Indeed,  ''  Whether  an  action  can  be  supported  in  England,  on  a  con- 
tract which  is  void  by  the  law  of  England,  but  valid  by  the  law  of 
tlie  country  where  the  matter  was  transacted,"  is  a  great  question 
(though  I  should  have  no  great  doubt  about  that).  But  that  case  does 
not  exist  here:  for  it  is  not  here  stated,  "  that  such  a  debt  as  this, 
for  money  won  at  play  in  France,  is  recoverable  in  the  ordinary 
courts  of  justice  there,"  but  quite  the  contrary.  So  that  the  laws  of 
France  and  of  England  are  the  same  as  to  the  money  won  :  tiifi-cQU- 
4ract  is  void  as  to  that,  by  the  laws  of  both  countries. 

And  as  to  this  wild,  illegal,  fantastical  court  of  honor,  the  court  of 
the  marshals  of  France,  acting  only  in  persoiumi,  contrary  to  the  uni- 
versal and  general  laws  even  of  the  country  where  the  transaction  hap- 
pened, and  contrary  to  the  genius  and  spirit  of  our  own  law  too  ;  it 
would  be  absurd  to  suppose  that  the  bare  possible  accidental  chance 
of  a  recovery  in  that  court  should  be  a  foundation  for  maintaining  an 
action  here,  upon  a  matter  prohibited  by  the  laws  of  both  countries. 

Besides,  Sir  John  Bland  himself,  as  it  seems,  was  not,  and  the 
present  defendant,  the  person  now  before  this  court,  could  never  have 
been  the  object  of  the  jurisdiction  of  that  court.  The  remedy  there,  in 
its  utmost  extent,  was  only  i/t  jMrsonam  ;  and  this  defendant  is  an 
administratrix  only. 

A  strong  reason  for  the  plaintiff's  recovering  in  this  action  the  money 
lent  is,  that  the  bill  of  exchange  is  payable  in  England  ;  and  therefore 
it  sliall  be  determined  according  to  the  laws  of  England,  where  it  is 
payable.  As  in  the  case  of  Sir  John  Champant  v.  Ld.  Ranelagh,  Mich. 
1700,  in  Chancery  (i-eported  in  Precedents  in  Chancery,  128).  A  bond 
was  made  in  England,  and  sent  over  to  Ireland,  and  the  money  to  be 
paid  there  ;  but  it  was  not  mentioned  what  interest  should  be  paid : 
my  Lord  Keeper  was  of  opinion,  '•  that  it  should  carry  Irish  interest." 
Therefore,  as  this  money  was  payable  in  England,  the  law  of  England 
must  be  the  rule  of  recovering  it. 

1  give  no  opinion  as  to  the  other  point :  yet  I  cannot  help  thinking, 
that  where  a  person  appeals  to  the  law  of  England,  he  must  take  his 
remedy  according  to  the  law  of  England,  to  wliich  he  has  appealed. 

There  is  no  difference,  in  this  case,  between  the  statute  law  and  the 
common  law  of  England ;  a  contract  cannot  be  maintained  upon  the 
one  that  is  void  by  the  other. 

The  law  of  the*^  place  where  the  thing  happens  does  not  always  pre- 
vail. In  many  countries,  a  contract  may  be  maintained  by  a  courtesan 
for  the  i)rice  of  her  prostitution  ;  and  one  may  suppose  an  action  to  be 
brought  here,  upon  such  a  contract  which  arose  in  such  a  country  :  but 
Hint  would  never  be  allowed  in  this  country.  Therefore  the  lex  loci 
cannot  in  all  cases  govern  and  direct. 

The  sentences  of  foreign  courts  have  always  some  degree  of  regard 
paid  to  them  i)y  the  courts  of  justice  here  ;   and  it  is  very  right  that 


SECT.  III.]  IN    RE   MISSOURI    STEAMSHIP   CO.  467 

an  attention  should  be  paid  to  them,  as  far  as  they  ought  to  have 
weight  in  the  case  depending. 

But  if  a  man  originally  appeals  to  the  law  of  England  for  redress,  he 
must  take  his  redress  according  to  that  law  to  which  he  has  appealed 
for  such  redress.  Therefore,  if  this  rule  of  determination  was  different, 
by  the  law  of  France,  from  our  rule  here,  yet  I  should  incline,  that  the 
law  of  England,  where  the  action  was  brought,  should  prevail  against 
the  law  of  France,  if  they  did  really  clash  with  each  other  ;  because  the 
party  seeking  redress  has  chosen  to  apply  here.  But  I  give  no  opinion 
at  all  on  this  point. 

As  to  the  money  lent :  There  can  be  no  doubt ;  because  there  is 
no  law  either  in  England  or  France  that  hinders  the  plaintiff  from 
maintaining  his  action  for  it. 


In  ee  MISSOURI   STEAIMSHIP  COMPANY. 

Chancery  Division  :  Court  of  Appeal.     1888  :  1889. 

[Reported  42  Chancery  Division,  321.] 

Chittt,  J.  This  is  a  claim  by  Mr.  Munroe  against  the  Missouri 
Steamship  Compan}*,  Limited,  for  damages  for  loss  of  his  cattle.  Mr. 
Munroe  is  a  citizen  of  the  United  States  domiciled  there.  The  com- 
pany is  an  English  company  incorporated  according  to  English  law, 
domiciled  in  England,  and  now  in  voluntary  liquidation.  The  _coji=_- 
tractswere_made.;it  Boston,  JIassachusfitts,  where  the  company  had  an 
agentTy  whom  the  contracts  were  entered  into  on  their  part.  The 
ship  on  which  the  goods  were  to  be  carried  was  the  Missouri,  a  British 
ship,  and  one  of  a  line  of  steamships  trading  regularly  between  Boston 
aTTd~Liverpool.  Tlie  contracts  were  for  the  carriage  of  the  cattle  from 
Boston  to  Liverpool,  and  theyj3ontained  express  stipulations  exempt- 
ing the  shipowners  from  liability  for  loss  or  damage  arising,  from  neg- 
ligence of  the  master  or  crew,  and  they  provided  that  bills  of  lading 
should  be  given  containing  stipulations  to  the  same  effect.  .  The  com- 
pany's agent  had  no  authority  to  bind  the  company  by  any  contract 
not  containing  such  stipulations  as  those  which  were  actually  inserted. 
The  cattle  were  shipped  on  board  at  Boston,  and  bills  of  lading  were 
given  and  accepted  there  in  conformity  with  the  contracts.  The 
ship  sailed  and  was  stranded  on  the  Welsh  coast.  It  is  admitted  for 
the  purposes  of  the  present  case  that  the  stranding  occurred  through  the 
negligence  of  the  master  and  crew.  In  these  circumstances  it  is  clear, 
as  "admitted  by  the  claimant's  counsel,  that  he  is  not  entitled  to  recover 
if  these  stipulations,  exempting  the  shipowners  from  liability  arising 
from  the  negligence  of  their  servants,  are  valid.  But  it  is  contended 
for  the  claimant  that  the  stipulations  are  invalid  according  to  the  law 


468  IN   RE   MISSOURI   STEAMSHIP   CO.  [CHAP.  X. 

of  the  State  of  Massachusetts,  where  the  contracts  were  in  fact  made 
and  the  bills  of  lading  given  and  accepted. 

There  was  no  substantial  contest  before  me  as  to  the  present  state 
of  the  law  in  Massachusetts  on  the  subject.  According  to  that  law  the 
stipulations  are  invalid.  The  ground  upon  which  the  decision  at 
present  stands  is  that  the  stipulations  by  which  a  common  carrier 
endeavors  to  exempt  himself  from 'the  consequences  of  the  negligence 
of  himself  and  his  servants  are  considered  to  be  extorted  by  the 
carrier  without  any  real  assent  on  the  part  of  the  person  sending 
the  goods,  and  are  v9^1  as  being  contrary  to  p^iblic  p^lia'-  I"  the 
Brentford  City,  29  Fed.  Rep.  373,  these  principleswere  held  to 
apply  in  favor  of  the  shipper  at  Boston  of  cattle  on  board  a  British 
vessel  for  carriage  to  England,  where  the  facts  were  substantially  the 
same  as  those  in  the  present  case.  The  law  in  the  United  States  on 
this  subject,  however,  appears  not  to  be  finally  settled.  The  question  is 
apparently  pending  in  the  Supreme  Court  in  the  case  of  "  The  Montana" 
on  appeal  from  the  Circuit  Court.  Tlie  Supreme  Court  has  given  leave 
to  the  appellants  to  adduce  evidence  to  show  what  is  the  English  law 
on  the  subject.  The  arguments  have  been  concluded  and  the  judgment 
has  been  reserved.  But  as  after  inquiry  I  am  unable  to  ascertain  that 
some  considerable  time  may  not  elapse  before  the  judgment  is  given, 
and  as  it  is  not  clear  that  the  judgment  will  determine  the  point,  I  have 
not  thought  it  right  to  postpone  any  longer  my  decision.  Should  the 
judgment  of  the  Supreme  Court  be  in  favor  of  the  shipowner  on  the 
validity  of  the  stipulation,  Mr.  Munroe's  claim  must  fail. 

I  proceed,  then,  to  consider  the  question  on  the  assumption  that 
according  to  the  law  of  Massachusetts  the  stipulations  are  void.  The 
question  to  be  determined  is  whether  the  law  of  England  or  the  law  of 
Massachusetts  ought  to  be  applied  to  the  stipulations  which  purport  to 
exempt  the  shipowners  from  liability  for  negligence. 

For  the  claimant  it  is  argued  that  the  question,  being  a  question  as 
to  the  validity  of  the  terms  of  the  contracts,  ought  to  be  determined 
according  to  the  law  where  the  contracts  were  made.  For  the  ship- 
owners, on  the  other  hand,  it  is  argued  that  the  question  ought  to 
be  determined  according  to  the  law  of  the  country  to  which  the  ship 
belongs.  As  the  stipulations  in  the  contracts  and  the  bills  of  lading 
are  identical  there  is  no  occasion  to  treat  these  documents  separately. 

Now  the  question  does  not  relate  to  Jlie  foriiial  validity  of  the  con-^ 
tracts,  and  the  question  raised  by  the  claimant  does  not  go  to  the 
validity  in  matters  of  substance  of  the  contract  as  a  whole.  So  far  as 
relates  to  all  matters  of  form  the  contracts  are  valid  according  to  the 
law  of  both  countries.  So  far  as  relates  to  all  matters  of  substance 
the  rest  of  the  contracts  would,  if  tlie  stipulations  attached  had  not 
been  inserted,  stand  valid  according  to  the  law  of  both  countries. 
Further,  the  stipulations  are  not  impeached  on  the  ground  that  they 
are  of  a  criminal  or  wicked  or  immoral  nature,  or  such  as  ought  not  to 
be  permitted  according  to  the  law  of  civilized  countries ;  they  are  im- 


SECT.  III.]  IN   KE    MISSOURI    STEAMSHIP   CO.  469 

peached  solely  on  the  ground  that  they  are  void,  as  being  disallowed 
b}'  the  law  of  the  place  where  the  contracts  were  made,  which  law 
considers  them  contrary  to  its  own  views  of  the  public  policy  that 
ought  to  prevail  within  the  limits  of  its  own  territorial  jurisdiction. 
Although  the  law  of  Massachusetts  would  in  the  case  of  a  contract 
made  in  Massachusetts  by  a  common  carrier  for  the  carriage  of  goods 
wholl}'  within  the  territories  of  the  State  hold  these  stipulations  void, 
I  cannot  find  an}'  sufficient  reason  for  saying  it  would  hold  them  void 
in  the  case  of  a  contract  made  within  the  State  for  the  carriage  of 
goods  where  the  performance  of  the  contract  was  (as  in  the  case  before 
me)  to  take  place  mainly  outside  the  State,  if  it  were  declared  ex- 
pressly on  the  face  of  the  contract  that  for  all  purposes  the  contract 
was  to  be  governed  by  the  law  of  the  country  to  which  the  ship 
belonged,  and  the  law  of  such  country  allowed  the  stipulations  to  be 
valid.  In  other  words,  I  apprehend  that  the  law  of  Massachusetts 
would  not  prohibit  the  parties  to  such  a  contract  from  contracting  ex- 
pressly with  a  view  to  the  law  of  England.  See  Lord  Mansfield's 
judgment  in  Robinson  v.  Bland,  2  Burr.  1078,  and  Story's  Conflict  of 
Laws,  pp.  280,  28L 

The  contracts  before  me  do  not  contain  any  such  express  declaration- 
But  I  have  examined  and  endeavored  to  ascertain  the  precise  nature  of 
the  objections  raised,  with  this  result,  as  it  appears  to  me,  that  it  was 
within  the  competence  of  the  parties  according  to  the  law  of  joth_coun-. 
tries  Jo  enter  into  the  contracts. 

Two  cases  of  high  authority  were  relied  upon  by  the  company's 
counsel  in  support  of  their  contention  :  Lloyd  v.  Guibert,  Law.  Rep. 
1  Q.  B.  115,  and  Peninsular  and  Oriental  Steam  Navigation  Company 
V.  Shand,  3  Moo.  P.  C.  (x.s.)  272.  The  actual  decisions  in  those  cases 
may  not  precisely  govern  the  present  case,  but  the  question  is  whether 
the  principle  upon  which  those  decisions  are  based  does  not  apply. 

It  is  generally  agreed  that  the  law  of  the  place  where  the  contract  is 
made  is  j^rimd  facie  that  which  the  parties  intended  or  ought  to  be 
presumed  to  have  adopted  as  the  footing  upon  which  they  dealt,  and 
that  such  law  ought  therefore  to  prevail  in  the  absence  of  circum- 
stances indicating  a  diflJerent  intention. 

Numerous  instances  of  the  exceptions  are  to  be  found  in  the 
books.  A  different  intention,  that  is  an  intention  to  be  bound  by 
some  other  law  than  the  law  of  the  place  where  the  contract  is  made, 
may  be  inferred  from  the  subject-matter  of  the  contract  and  from  the 
surrounding  circumstances,  so  far  as  they  are  relevant  to  determine 
the  character  of  the  contract.  See  the  judgment  of  Mr.  Justice  Willes 
in  Lloyd  v.  Guibert,  Law  Rep.  1  Q.  B.  122,  123.  The  terms  and  stip- 
ulations found  in  the  contract  itself  are  matters  of  importance  to  be 
taken  into  consideration  as  to  the  true  inference  to  be  drawn.  The 
general  principle  by  which  the  Court  of  Exchequer  was  guided  in 
the  solution  of  the  question  as  to  what  law  ought  to  prevail  was  that 
the  rights  of  the  parties  to  a  contract  are  to  be  judged  of  by  that  law 


470  IN   RE    MISSOURI    STEAMSHIP   CO.  [CHAP.  X. 

by  which  they  intended,  or  rather  by  which  they  may  justly  be  pre- 
sumed to  have  intended,  to  bind  themselves,  and  by  the  steady  appli- 
cation of  that  principle  the  court  arrived  at  the  conclusion  that  where 
the  contract  of  affreightment  does  not  provide  otherwise  than  as 
between  the  parties  to  such  contract  in  respect  of  sea-damage  and 
its  incidents,  the  law  of  the  ship  should  govern.  In  that  case  the  ship 
was  a  French  ship,  the  contract  was  made  at  a  Danish  West-Indian 
port,  and  the  goods  were  shipped  to  Hayti  to  be  delivered  at  Havre, 
London,  or  Liverpool,  at  the  charterer's  option.  The  court  held  that 
the  law  of  France  applied,  whereby  the  shipowners  on  abandonment  of 
the  ship  and  freight  were  exempt  from  any  liabiUty  to  the  owner  of 
the  cargo,  and  rejected  the  law  of  Denmark  and  the  various  other  coun- 
tries put  forward  on  behalf  of  the  owners  of  the  cargo.  In  the  course 
of  the  judgment  the  various  places  in  which  the  contract  was  to  be 
performed  were  pointed  out ;  but  in  adopting  the  French  law  the  court 
relied  on  the  subject-matter  of  the  contract,  the  employment  of  a  sea- 
going vessel  for  a  service  the  greater  and  more  onerous  part  of  which 
was  to  be  rendered  on  the  high  seas,  where  for  all  purposes  of  jurisdic- 
tion, criminal  and  civil,  with  respect  to  all  persons,  things,  and  trans- 
actions on  board,  she  was,  as  it  were,  a  floating  island,  over  which 
France  had  as  absolute,  and  for  all  purposes  of  peace  as  exclusive,  a 
sovereignt}'  as  over  her  dominions  b}-  land,  and  which  even  when  in  a 
foreign  port  was  never  completely  removed  from  French  jurisdiction. 
These  practical  considerations  formed  the  main  ground  of  the  judg- 
ment. The  court  declined  to  enter  into  any  question  as  to  the  policy 
of  the  French  law. 

I  have  referred  somewhat  fully  to  this  judgment  in  order  to  show 
that  the  principle  upon  which  it  proceeds  is  not  confined  to  the  par- 
ticular facts  of  that  case,  but  is  applicable  and  ought  to  be  applied  not 
merely  to  questions  of  construction  and  the  rights  incidental  to,  or 
arising  out  of,  the  contract  of  affreightment,  but  to  questions  as  to  the 
validity  of  stipulations  in  the  contract  itself.  Any  distinctions  founded 
on  the  difference  of  these  questions  were  not  rested  on  substantial 
ground,  and  would  lead  to  uncertaintv  and  confusion  in  mercantile 
transactions  of  this  character.  It  is  just  to  presume  that  in  reference 
to  all  such  questions  the  parties  have  submitted  themselves  to  the  law 
of  one  country  onl}',  namely,  that  of  the  flag ;  and  so  to  hold  is  to 
adopt  a  simple,  natural,  and  consistent  rule.  "Westlake's  Private 
International  Law,  2d  ed.  p.  20L 

In  Lloyd  v.  Guibert,  Law  Rep.  1  Q.  B.  115,  there  were  no  express 
stipulations  pointing  to  the  law  of  the  country  rather  than  to  the  law 
of  some  other  country,  but  in  Peninsular  and.  Oriental  Steam  Naviga- 
tion Company  r.  Shand,  3  Moo.  P.  C.  (n.  s.)  272,  where  also  it  was 
held  that  the  contract  was  governed  by  the  law  of  the  flag,  there  were 
such  stipulations,  and  Lord  Justice  Turner,  in  delivering  tlie  judguient 
of  the  Privy  Council,  inquired  into  the  actual  intention  of  the  contract- 
ing parties  as  disclosed  on  tlie  face  of  the  contract.     In  that  case  the 


SECT.  III.]  IN   KE    MISSOUEI    STEAMSHIP   CO.  471 

contract  was  made  between  British  subjects  in  England  substantial!}' 
for  safe  carriage  from  Southampton  to  Mauritius.  The  performance 
was  to  commence  in  an  English  vessel  in  an  English  port,  to  be  con- 
tinued in  vessels  which,  for  this  purpose,  carried  their  country  with 
them,  to  be  fuUj-  completed  in  Mauritius,  but  liable  to  breach,  partial 
or  entire,  in  several  other  countries  in  which  the  vessel  might  be  in  the 
course  of  the  voyage.  Into  this  contract  there  was  introduced  a  stipu- 
lation professing  to  limit  the  liability  of  the  shipowner,  which  stipula- 
tion was  valid  according  to  the  law  of  England,  but  invalid  according 
to  the  law  of  Mauritius.  In  discussing  the  intention  of  the  parties  the 
Lord  Justice  asked,  in  substance,  whether  it  was  contended  that  the 
stipulation  should  be  construed  according  to  the  English  law,  which 
would  give  effect  to  it,  or  according  to  the  French  law,  or  some  other 
law,  which  would  give  no  effect  to  it,  and  he  held  that  the  actual  in- 
tention of  the  parties  must  be  taken  clearl}-  to  have  been  to  treat  the 
contract  as  an  English  contract,  to  be  interpreted  according  to  English 
law,  and  that  there  was  no  rule  of  general  law  or  polic}-  setting  up 
a  contrary  presumption,  and  consequenth'  that  the  court  below  was 
wrong  in  not  governing  itself  according  to  those  rules.  Now  the  differ- 
ence in  fact  between  that  case  and  the  present  is  that  in  that  case  the 
parties  were  both  British  subjects,  and  the  contract  was  made  in  Eng- 
land, whereas  in  the  present  case  one  onl}-  of  the  parties  is  English, 
and  the  contract  was  made  in  Boston,  But  these  differences,  though 
proper  to  be  taken  into  consideration  on  the  general  question,  have 
little  or  no  bearing  on  the  question  of  the  intention  of  the  parties  to  be 
inferred  from  the  particular  stipulations. 

In  determining  a  question  between  contracting  parties  (to  quote  from 
the  judgment  in  Lloyd  v.  Guibert,  Law  Rep.  1  Q.  B.  120),  recourse 
must  first  be  had  to  the  language  of  the  contract  itself,  and,  force, 
fraud,  and  mistake  apart,  the  true  construction  of  the  language  of  the 
contract  is  the  touchstone  of  legal  right.  The  circumstance  that  the 
stipulations  which  the  claimant  asks  to  have  struck  out  of  the  con- 
tracts are  allowed  by  the  law  of  one  country  and  disallowed  b\'  the  law 
of  the  other  country,  affords  a  cogent  reason  for  holding  that  the  par- 
ties were  contracting  with  reference  to  the  law  of  the  countr}'  which 
allowed  and  not  to  the  law  which  disallowed  the  stipulations.  It  is 
unreasonable  to  presume  that  the  parties  inserted  in  the  contracts 
stipulations  which  they  intended  should  be  nugatory  and  void.  But 
on  the  facts  of  this  case  a  more  limited  proposition  may  be  adopted. 
The  loss  occurred  through  the  negligence  of  the  shipowner's  servants 
within  the  territorial  waters,  not  of  Massachusetts,  but  of  Wales,  that 
is,  of  a  countrj'  where  English  law  prevails.  Conceding  that  it  would 
be  possible  (without  saying  it  would  be  reasonable)  to  presume  that 
the  parties  contracted  with  reference  to  the  law  of  Massachusetts  in 
respect  of  an}-  loss  b}'  negligence  occurring  within  the  territorial  waters 
of  that  State,  it  appears  to  me  that  it  would  be  unreasonable  to  pre- 
sume that  they  contracted  with  reference  to  the  law  of  that  State  in 


472  IN   EE    MISSOURI    STEAMSHIP   CO.  j^CHAP.  X. 

respect  of  a  loss  by  negligence  occurring  outside  the  limits  of  that 
State. 

I  hold,  then,  that  the  stipulations  are  valid,  first,  on  the  general 
ground  that  the  contracts  are  governed  by  the  law  of  the  flag,  and 
secondl}',  on  the  particular  ground  that  from  the  special  provisions  of 
the  contracts  themselves  it  appears  the  parties  were  contracting  with  a 
view  to  the  law  of  England. 

Prom  this  judgment  the  claimant  appealed. 

The  appeal  came  on  to  be  heard  on  the  20th  of  June,  1888,  but  the 
hearing  stood  over  to  await  the  decision  of  the  Montana  Case  in  the 
Supreme  Court  of  the  United  States. 

The  case  came  on  again  on  the  1st  of  May,  1889,  when  a  printed 
copy  of  the  judgment  in  the  Montana  Case  was  produced  to  the  court, 
from  which  it  appeared  that  the  stipulation  in  question  was  held  b}'  the 
Supreme  Court  to  be  void  as  being  contrary  to  public  polic}-.^ 

Fry,  L.  J.  The  principles  on  which  this  case  has  to  be  decided 
have  been  familiar  to  the  courts  at  any  rate  since  the  time  of  Lord 
Mansfield,  who  in  the  case  of  Robinson  r.  Bland,  2  Burr.  1077,  ex- 
pounded those  principles  of  law,  and  the}-  have  been  clearlj-  stated 
since  in  many  cases,  among  others  in  the  well-known  case  of  Llo3'd  v. 
Guibert,  Law  Rep.  1  Q.  B.  115,  122,  where  the  learned  Judge,  who 
delivered  the  judgment  of  the  Exchequer  Chamber,  said:  "It  is, 
however,  generally  agreed  tliat  the  law  of  the  place  where  the  contract 
is  made  is  jynind/acie  that  which  the  parties  intended,  or  ought  to  be 
presumed  to  have  adopted  as  the  tooting  upon  which  they  dealt,  and 
^  that  such  law  ougut  theretore  to  prevail  in  the  absence  of  circumstances 
indicating  a  different  intention,  as,  for  instance,"  —  and  he  goes  on  to 
enumerate  instances  from  which  the  courts  have  gleaned  a  diffei-ent 
intention.  That  view  of  the  law  was  fully  adopted  in  the  case  of 
Jacobs  V.  Credit  L3'onnais,  12  Q.  B.  D.  589,  in  this  court. 

I  think,  therefore,  the  general  principle  on  which  we  have  to  proceed 
is  one  which  admits  of  no  doubt;  and  the  inquiry,  thereforft^  is  thjg  : 
looking  at  the  subject-matter  of  tliis  contract,  the  place  wberft  it  wns 
made,  the  contracting  parties,  aiyl  fho.  fhjno-s  to  be  done,  what  ought 
t?  b?  P''^snr"^'^  ^'^  hr,^rn  hr>nn  tiin  ^ntr>nti"n  of  tlil^contracting  parties 
Mojfh  rotT^ffl  in  Hio  Iqvy  whic.li  was  to  govcm  this  contract  ?  By  that  I' 
meaii  to  deif"^in^  ^'^'^  y^H'm-y  f^nd  its  interpretation. 

Now,  in  the  first  place,  the  ship  was  an  English  ship  ;  the  owners 
were  an  English  compan}- ;  England  was  the  place  to  which  the  goods 
were  to  be  brought  and  the  place  at  which  the  final  completion  of  the 
contract  was  to  take  place  ;  and,  what  is  still  more  important,  the 
forms  of  the  contract  and  the  bills  of  lading  were  English  forms. 
According  to  the  law  of  England,  the  contract  would  be  good  in  tlic 
terms  in  which  it  stood  ;  whereas  according  to  the  law  of  the  United 

^  Arguments  of  coun.sel  and  the  coucurriiii;:  opiniuus  uf  Lurd  IIalsblky,  L.  C,  aud 
Cotton,  L.  J.,  .ire  omitted.  —  Ed. 


SECT.  III.]  IN   RE   MISSOUEI   STEAMSHIP   CO.  473 

States  important  terms  of  the  contract  would  be  excluded  from  it 
That  is,  to  my  mind,  a  very  cogent  consideration  to  show  that  what, 
must  be  presumed  to  have  been  the  intent  of  the  parties  was  tliis  : 
that  the  law  which  would  make  the  contract  valid  in  all  particulars  waa, 
the  law  to  regulate  the  conduct  of  the  pjirtjes.  Looking  at  all  the  cir- 
cumstances of  the  case,  I  have  no  doubt  that  that  is  the  conclusion 
which  we  ought  to  arrive  at. 

In  coming  to  that  conclusion,  and  in  stating  those  principles,  1  am 
glad  to  find  that  I  am  in  entire  accordance  with  the  law  laid  down  in 
the  American  courts.  It  appears  to  me  that  the  passages  cited  from 
Mr.  Justice  Story  are  strong  in  favor  of  the  principle  to  which  I  have 
referred,  and  in  the  case  of  "  The  Montana  "  that  rule  was  adopted  in 
express  terms  by  the  Supreme  Court  of  the  United  States.  Lord  Jus- 
tice Cotton  has  read  one  passage  from  that  judgment,  and  I  will  read 
another:  '■'■  This  court  has  not  heretofore  had  occasion  to  consider  by 
what  law  contracts  like  those  now  before  us  should  be  evpnnnded. 
But  it  has  often  affirmed  and  acted  on  the  general  rule,  that  contracts 
are  to  be  governed,  as  to  their  nature,  their  validity,  and  their  inter- 
pretation, bv  tlie  law  of  the  place  where  thev  were  made,  unless  the 
contracting  parties  clearlv  appear  to  have  had  some  other  law  in 
view ;  "  and  in  that  very  case,  in  accordance  with  the  principle  so  laid 
down,  the  Supreme  Court  proceeded  to  inquire  whether  there  were  any 
circumstances  from  which  they  ought  to  presume  any  other  law  than 
that  of  the  place  where  the  contract  was  made  to  have  been  presumed 
by  the  parties.  Therefore,  it  is  obvious  in  adopting  the  principles 
which  I  have  stated  we  are  proceeding  not  only  according  to  the  Eng- 
lish law,  but  also  according  to  the  law  of  America.  It  is  very  desirable, 
if  possible,  tliat  the  law  relating  to  the  interchange  of  comity  between 
nations  should  be  the  same. 

There  was  only  one  other  argument  put  forward  to  which  I  need 
refer,  and  it  seemed  to  me  to  be  a  little  halting  between  two  state- 
ments. Sir  Walter  Phillimore  laid  down  a  proposition  to  this  etfect, 
that  whenever  the  law  of  the  place  where  the  contract  is  made  pro- 
hibits a  particular  stipulation  in  a  contract  no  other  country  can  treat 
that  stipulation  as  valid.  If  by  the  word  "prohibit  "he  means  that 
the  law  of  the  United  States  has  in  terms  prohibited  or  has  rendered 
illegal  or  criminal  the  introduction  of  this  stipulation,  it  appears  to  me 
that  the  decision  in  the  Montana  Case  shows  that  that  is  not  the  law 
of  the  United  States.  That  decision,  I  think,  when  fairly  read,  shows 
what  one  would  expect  to  be  the  case,  namely,  that  the  courts  have 
held  that  this  stipulation  being  obnoxious  to  their  public  policy  is  void, 
not  illegal,  exactly  in  the  same  way  as  in  this  country  we  hold  that 
stipulations  which  are  in  restraint  of  trade  are  not  illegal,  and  that  the 
entering  into  them  does  not  constitute  an  illegal"  conspiracy,  but  they 
are  void.  If,  on  the  other  hand,  it  be  argued  that  where  the  law  of 
the  place  of  the  contract  refuses  to  enforce  a  stipulation,  then  no  other 
country  will  enforce  that  stipulation,  we  have  a  proposition  which  on 


474  PRITCHARD    V.   NORTON.  [CHAP.  X. 

;i;he  face  of  it  appears  to  me  to  be  untenalilo.  Tlicroforo.  whichever  is 
the  alternative  of  the  proposition  which  Sir  Walter  Phillimore  adopts, 
neithar  oi  ihem  wUl  support  his  case. 

I  tliink,  therefore,  the  decision  of  Mr.  Justice  Chitty  was  correct, 
and  that  this  appeal  fails.^ 


PRIlCflARD  V.  NORTON. 

Supreme  Court  of  the  United  States.     1882. 

[Reported  106  United  States,  124.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the  District  of 
Louisiana.  This  action  was  brought  by  Eliza  D.  Pritchard^  a  citjzen 
of  Louisiana,  executrix  of  Ricliard  Pritchard,  deceased,  against  Nor- 
ton, a  citizen  of  New  York,  hpcn  a  bond  made  in  New  York,  by  sajd 
Norton  and  another,  conditioned  to  indemnify  Pritchard  against  loss 
arising  from  his  liability  on  an  ajjpeal  bond  already  given  by  them  as 
principals  and  sigjaed  by  Pritchard  as  suret}'  in  Louisiana.  Pritchard 
was  called  upon  to  pay  money  upon  the  appeal  bond.  The  defendant 
set  up  by  way  of  defence,  that  the  bond  sued  on  was  executed  and 
delivered  by  him  to  Pritchard  in  the  State  of  New  York,  and  without 
any  consideration  therefor,  and  that  by  the  laws  of  that  State  it  was 
void,  by  reason  thereof.  The  court  so  ruled  ;  the  plaintiff  excepted  to 
the  ruling,  and  now  assigns  the  exception  as  error.^ 

Mattiikws,  J.  It  is  claimed  on  liehalf  of  the  plaintiff  that  by  the 
law  of  Louisiana  the  pre-existing  liability  of  Pritchard  as  surety  for 
the  railroad  company  would  be  a  valid  consideration  to  support  the 
promise  of  indcmriity,  notwithstanding  his  liabilit\'  had  been  incurred 
without  any  previous  request  from  the  defendant.  This  claim  is  not 
controverted,  and  is  fully  supported  by  the  citations  from  the  Civil 
Code  of  Louisiana  of  1870,  art.  1893-1960,  and  the  decisions  of  the 
Supreme  Court  of  that  State.  Flood  v.  Thomas,  5  Mart.  N.  s.  (La.) 
560  ;  N.  O.  Gas.  Co.  v.  Paulding,  12  Rob.  (La.)  378  ;  N.  O.  &  Carrollton 
Railroad  Co.  r.  Cha|)man,  8  La.  Ann.  97;  Keane  r.  Goldsmith,  TIaber 
&  Co..  12  La.  Ann.  560.  In  the  case  last  mentioned  it  is  said  that  "  the 
contract  is,  in  its  nature,  one  of  personal  warranty,  recognized  by  arti- 
cles 378  and  379  of  the  Code  of  Practice."  And  it  was  there  held  that 
a  riglit  of  action  upon  the  bond  of  indemnity  accrued  to  the  obligee, 
when  his  liability  became  fixed  as  surety  by  a  final  judgment,  without 
payment  on  iiis  part,  it  being  the  obligation  of  the  defendants  upon 
the  bond  of  indomnit}'  to  pa}'  the  judgment  rendered  against  him,  or  to 
furnish  him  the  money  with  which  to  pay  it. 

1  Arc.  Sonth  African  P.rcwcries  i-.  Kinff,  flS'.tO]  2  Ch.  173,  [1900]  1  Ch.  273.  —En. 
^  This  statement  of  the  case  is  suhstitiiteii  for  that  of  the  Reporter.     Arguments  of 
counsel  and  part  of  the  opinion  are  omitted.  —  Ed. 


SECT.  III.]  PRITCHARD    V.    NORTON.  475 

The  single  question  presented  by  the  record,  therefore,  is  whether 
fhp  law  ^^  ^P'^  York  or  that  of  Louisiana  defines  and  fixes  the  rights 
and  obligations  of  the  parties.  If  the  former  applies,  the  judgment  of 
the  court  below  is  correct ;  if  the  latter,  it  is  erroneous. 

The  argument  in  support  of  the  judgment  is  simple,  and  may  be 
briefly  stated.  It  is,  that  New  York  is  the  place  of  the  contract,  both 
because  it  was  executed  and  delivered  there,  and  because  no  other 
place  of  performance  being  either  designated  or  necessarily  implied,  it 
was  to  be  performed  there ;  wherefore  the  law  of  New  York,  as  the 
lex  loci  contractus,  in  both  senses,  being  lex  loci  celebrationis  and  lex 
loci  solutionis,  must  apply  to  determine  not  only  the  form  of  the  con- 
tract, but  also  its  validity. 

On  the  other  hand,  the  appHcation  of  the  law  of  Louisiana  may  be 
considered  in  two  aspects  :  as  the  lex  fori,  the  suit  having  been  brought 
in  a  court  exercising  jurisdiction  within  its  territory  and  administering 
its  laws  ;  and  as  the  lex  loci  solutionis,  the  obligation  of  the  bond  of 
indemnity  being  to  place  the  fund  for  payment  in  the  hands  of  the 
surety,  or  to  repay  him  the  amount  of  his  advance,  in  the  place  where 
he  was  bound  to  discharge  his  own  liability. 

It  will   be  convenient  to  consider  the   applicability  of  the  law  of 
Louisiana,  first,   as  the  lex  fori,  and  then  as  the  lex  loci  solutionis. 
1.  The  lex  fori. 

The  court  below,  in  a  cause  like  the  present,  in  which  its  jurisdiction 
depends  on  the  citizensiiip  of  the  parties,  adjudicates  their  rights  pre- 
cisely as  should  a  tribunal  of  the  State  of  Louisiana  according  to  her 
laws  ;  so  that,  in  that  sense,  there  is  no  question  as  to  what  law  must 
be  administered.  But,  in  case  of  contract,  the  foreign  law  may,  by 
the  act  and  will  of  the  parties,  have  become  part  of  their  agreement ; 
and,  in  enforcing  this,  the  law  of  the  forum  may  find  it  necessary  to 
give  eflTect  to  a  foreign  law,  which,  without  such  adoption,  would  have 
no  force  beyond  its  own  territory. 

This,  upon  the  principle  of  comity,  for  the  purpose  of  promoting 
and  facilitating  international  intercourse,  and  within  limits  fixed  by 
its  own  public  policy,  a  civilized  State  is  accustomed  and  considers 
itself  bound  to  do  ;  but,  in  doing  so,  nevertheless  adheres  to  its  own 
system  of  formal  judicial  procedure  and  remedies.  And  thus  the  dis- 
tinction is  at  once  established  between  the  law  of  the  contract,  which 
may  be  foreign,  and  the  law  of  the  procedure  and  remed}-,  which  must 
be  domestic  and  local.  In  respect  to  the  latter  the  foreign  law  is  re- 
jected ;  but  how  and  where  to  draw  the  line  of  precise  classification  it 
is  not  always  easy  to  determine. 

TliP  princinle  is.  that  whateyffr  TPlftt.es  merely  to  tl^P  rpmedv  f^yd 
constitutes  part  _of  the  procedure  is  determined  byjhe.law  of  the  fomm^ 
for  matters  of  process  must  be  uniform  in  the  courts  of  the  same  coim- 
*try  ;  but  whatever  goes  to  the  substance  of  the  obligation  and  affects 
the  rights  of  the  parties,  as  growing  out  of  the  contract  itself,  or  inher- 
ing  in  it  or  attaching  to  it,  is  governedjaj  the  law  of  the  contract.  .  .  . 


476  PRITCHARD   V.    NORTON.  [CHAP.  X. 

Jllie  .question  of  consideration,  whether  arising  upon  the  admissibil- 
ity of  evidence  or  presented  as  a  point  in  pleading,  is  not  one  of  proce- 
dure and  remedy.  It  goes  to  the  substance  of  the  right  itsell,  and_ 
belongs  to  the  constitution  of  the  contract.  The  difference  between  the 
law  of  Louisiana  and  that  of  New  York,  presented  in  this  case,  is  radi- 
caf,  and  gives  rise  to  the  inquiry,  what^  according  to  each,  are  the 
essential  elements  of  a  valid  contract,  determinable  only  by  the  law  of 
its  seat ;  and  not  that  other,  what  remedy  is  provided  by  the  law  of  the 
place  where  the  suit  has  been  brought  to  recover  for  the  breach  of  its 
obligation. 

On  tKts  point,  what  was  said  in  The  Gaetano  &  Maria,  7  P.  D.  137, 
is  pertinent.  In  that  case  the  question  was  whether  the  English  law, 
which  was  the  law  of  the  forum,  or  the  Italian  law,  which  was  the  law 
of  the  flag,  should  prevail,  as  to  the  validity  of  a  hypothecation  of  the 
cargo  by  the  master  of  a  ship.  It  was  claimed  that  because  the  matter 
to  be  proved  was,  whether  there  was  a  necessity  which  justified  it,  it 
thereby  became  a  matter  of  procedure,  as  being  a  matter  of  evidence. 
Lord  Justice  Brett  said :  "  Now,  the  manner  of  proving  the  facts  is 
matter  of  evidence,  and,  to  my  mind,  is  matter  of  procedure,  but  the 
facts  to  be  proved  are  not  matters  of  procedure  ;  they  are  matters  with 
which  the  procedure  has  to  deal." 

It  becomes  necessary,  therefore,  to  consider  the  applicability  of  the 
law  of  Louisiana  as  — 
2.  The  lex  loci  solutionis. 

The  phrase  lex  loci  contractus  is  used,  in  a  double  sense,  to  mean, 
sometimes,  the  law  of  the  place  where  a  contract  is  entered  into ; 
sometimes,  that  of  the  place  of  its  performance.  And  when  it  is  em- 
ployed to  describe  the  law  of  the  seat  of  the  obligation,  it  is,  on  that 
account,  confusing.  The  law  we  are  in  search  of,  which  is  to  decide 
upon  the  nature,  interpretation,  and  validity  of  the  engagement  in 
question,  is  that  which  the  parties  have,  either  expressly  or  presump- 
tively, incorporated  into  their  contract  as  constituting  its  obligation. 
It  has  never  been  better  described  than  it  was  incidentally  by  Mr. 
Chief  Justice  Marshall  in  Wayman  v.  Southard,  10  Wheat.  1,  48,  where 
he  defined  it  as  a  principle  of  universal  law,  —  "  The  princij)le  that  in 
every  forum  a  coiitract  is  sfoverned  b}'  the  law  with  a  A^ew  to  wtiich-it 
^•as  made."  The  same  idea  hM  b6feh  6g[)r6g56d  by  LorcTlVIansficld  in 
Robinson~y.  Bland,  2  JJurr.  1077,  1078.  "The  law  of  the  place,"  he 
said,  "  can  never  be  the  rule  where  the  transaction  is  entered  into  with 
an  express  view  to  the  law  of  another  country,  as  the  rule  1)3*  which  it 
is  to  be  governed."  And  in  Lloyd  o.  Guibert,  Law  Rep.  1  Q.  B.  115, 
120,  in  the  Court  of  Exchequer  Chamber,  it  was  said  that  "-  it  is  neces- 
sary to  consider  by  what  general  law  the  parties  intended  that  the 
■  transaction  should  be  governed,  or  rather,  by  what  general  law  it  is 
just  to  presume  that  they  have  submitted  themselves  in  the  matter."  Le 
Breton  v.  Miles,  8  Paige  (N.  Y.),  201. 

It  is  upon  this  ground  that  the  presumption  rests,  that  the  contract 


SECT.  III.]  PRITCHARD    V.    NORTON.  477 

is  to  be  performed  at  the  place  where  it  is  made,  and  to  be  governed  by 
its  laws,  there  being  nothing  in  its  terras,  or  in  the  explanatory  circum- 
stances of  its  execution,  inconsistent  with  that  intention. 

So,  Phillimore  says  :  ^'  It  is  always  to  be  remembered  that  in  obliga- 
tions it  is  the  will  of  the  contracting  parties,  and  not  the  law,  which 
fixes  the  place  of  fulfilment,  —  whether  that  place  be  fixed  by  express 
words  or  by  tacit  implication  —  as  the  place  to  the  jurisdiction  of 
which  the  contracting  parties  elected  to  submit  themselves."  4  Int. 
Law,  469. 

The  same  author  conclude.s  his  discussion  of  the  particular  topic  as 
follows  ;  "  As  all  the  foregoing  rules  rest  upon  the  presumption  that 
the  obligor  has  voluntarily  submitted  himself  to  a  particular  local  law, 
that  presumption  may  be  rebutted,  either  by  an  express  declaration  to 
the  contrary,  or  by  the  fact  that  the  obligation  is  illegal  by  that  par- 
ticular law,  tliough  legal  by  another.  The  parties  cannot  be  presumed 
to  have  contemplated  a  law  which  would  defeat  their  engagements." 
4  Int.  Law,  §  654,  pp.  470,  47L 

This  rule,  if  universally  applicable,  which  perhaps  it  is  not,  though 
founded  on  the  maxim,  ut  res  magis  valeat  quam  pereat,  would  be  de- 
cisive of  the  present  controversy,  as  conclusive  of  the  question  of  the 
application  of  the  law  of  Louisiana,  by  which  alone  the  undertaking  of 
the  obligor  can  be  upheld. 

At  all  events,  it  is  a  circumstance,  highly  persuasive  in  its  character, 
of  the  presumed  intention  of  the  parties,  and  entitled  to  prevail,  unless 
controlled  by  more  express  and  positive  proofs  of  a  contrary  intent. 

It  was  expressly  referred  to  as  a  decisive  principle  in  Bell  v.  Pack- 
ard, 69  Me.  105,  although  it  cannot  be  regarded  as  the  foundation  of 
the  judgment  in  that  case.     Milliken  v.  Pratt,  125  Mass.  374. 

If  now  we  examine  the  terms  of  the  bond  of  indemnity-,  and  the 
situation  and  relation  of  the  parties,  we  shall  find  conclusive  corrobora- 
tion of  the  presumption,  that  the  obligation  was  entered  into  in  view  of 
the  laws  of  Louisiana. 

The  antecedent  liabilit}-  of  Pritchard,  as  suret}-  for  the  railroad  com- 
pany on  the  appeal  bond,  was  confessedly  contracted  in  that  State, 
according  to  its  laws,  and  it  was  there  alone  that  it  could  be  performed 
and  discharged.  \  Its  undertaking  was,  that  Pritchard  should,  in  certain 
contingencies,  satisfy  a  judgment  of  its  courts.  That  could  be  done 
only  within  its  territor}-  and  according  to  its  laws. \  The  condition  of  the 
obligation,  which  is  the  basis  of  this  action,  is,  that  McComb  and  Nor- 
ton, the  obligors,  shall  hold  harmless  and  fully  indemnify  Pritchard 
against  all  loss  or  damage  arising  from  his  liability  as  surety  on  the 
appeal  bond.  A  judgment  was,  in  fact,  rendered  against  him  on  it  in 
Louisiana.  There  was  but  one  way  in  which  the  obligors  in  the  in- 
demnity bond  could  perfectly  satisfy  its  warranty.  That  was,  the 
moment  the  judgment  was  rendered  against  Pritchard  on  the  appeal 
bond,  to  come  forwai'd  in  his  stead,  and,  by  payment,  to  extinguish  it. 
He  was  entitled  to  demand  this  before  any  payment  by  himself,  and  to 


478 


PRITCHARD   V.   NORTON. 


[chap.  X. 


require  that  the  fund  should  be  forthcoming  at  the  place  where  other- 
uise  he  could  be  required  to  pay  it.  ^  Even  if  it  should  be  thought  that 
Pritehard  was  bound  to  pay  the  judgment  recovered  against  himself, 
before  his  right  of  recourse  accrued  upon  the  bond  of  indemnity,  never- 
theless he  was  entitled  to  be  reimbursed  the  amount  of  his  advance  at 
the  same  place  where  he  had  been  required  to  make  it.  )  So  that  it  is 
clear,  beyond  any  doubt,  that  the  obligation  of  the  indemnity  was  to 
be  fulfilled  in  Louisiana,  and,  consequently,  is  subject,  in  all  matters 
affecting  its  construction  and  validity,  to  the  law  of  that  locality. 

This  construction  is  abundantly  sustained  by  the  authority  of  judi- 
cial decisions  in  similar  cases. 

In  Irvine  u.  Barrett,  2  Grant's  (Pa.)  Cas.  73,  it  was  decided  that 
where  a  security  is  given  in  pursuance  of  a  decree  of  a  court  of  justice, 
it  is  to  be  construed  according  to  the  intention  of  the  tribunal  which 
directed  its  execution,  and,  in  contemplation  of  law,  is  to  be  performed 
at  the  place  where  the  court  exercises  its  jurisdiction  ;  and  that  a  bond 
given  in  another  State,  as  collateral  to  such  an  obligation,  is  controlled 
by  the  same  law  which  controls  the  principal  indebtedness.  In  the 
case  of  Penobscot  &  Kennebec  Railroad  Co.  v.  Bartlett,  12  Gray 
(Mass.),  244,  the  Supreme  Judicial  Court  of  Massachusetts  decided 
that  a  contract  made  in  that  State  to  subscribe  to  sliares  in  the  capital 
stock  of  a  railroad  corporation  established  b}-  the  laws  of  another  State, 
and  having  their  road  and  treasur}-  there,  is  a  contract  to  be  performed 
there,  and  is  to  be  construed  by  the  laws  of  that  State.  In  Lanusse  v. 
Barker,  3  Wheat.  110,  146,  this  court  declared  that  "where  a  general 
authority  is  given  to  draw  bills  from  a  certain  place,  on  account  of 
advances  there  made,  the  undertaking  is  to  replace  the  monej'  at  that 
place." 

-^The  case  of  Cox  v.  United  States,  6  Pet.  172,  was  an  action  upon 
the  official  bond  of  a  nav}''  agent.  The  sureties  contended  that  the 
United  States  were  bound  to  divide  their  action,  and  take  judgment 
against  each  surety  only  for  his  proportion  of  the  sum  due,  according 
to  the  laws  of  Louisiana,  considering  it  a  contract  made  there,  and  to 
be  governed  in  this  respect  by  the  law  of  that  State.  The  court,  how- 
ever, said:  "But  admitting  the  bond  to  have  been  signed  at  New 
Orleans,  it  is  very  clear  that  the  obligations  imposed  ui)on  the  parties 
thereby  looked  for  its  execution  to  the  cit}'  of  Washington.  It  is  im- 
material where  the  services  as  nav}-  agent  were  to  be  performed  l)y 
Hawkins.  His  accountability  for  non-performance  was  to  be  at  tlie 
seat  of  government.  He  was  bound  to  account,  and  the  sureties  un- 
dertook that  he  should  account  for  all  public  moneys  received  bj-  him, 
with  such  officers  of  the  government  of  the  United  States  as  are  dul}* 
authorized  to  settle  and  adjust  liis  accounts.  Tlie  bond  is  given  with 
reference  to  the  laws  of  the  United  States  on  that  subject.  And  such 
accounting  is  required  to  be  with  the  Treasury  Department  at  the  seat 
of  government ;  and  the  navy  agent  is  bound  b}'  tlie  very  terms  of  the 
bond  to  pay  over  such  sum  as  may  be  found  due  to  the  United  States 


SECT.  III.]  PRITCHARD    V.    NORTON.  479 

on  such  settlement ;  and  such  paying  over  must  be  to  the  Treasury 
Department,  or  in  such  manner  as  shall  be  directed  by  the  secretary-. 
The  bond  is,  therefore,  in  every  point  of  view  in  which  it  can  be  con- 
sidered, a  contract  to  be  executed  at  the  city  of  Washington,  and  the 
liability  of  the  parties  must  be  governed  b3^  the  rules  of  the  common 
law."  This  decision  was  repeated  in  Duncan  v.  United  States,  7  Pet. 
435. 

These  cases  were  relied  on  by  the  Supreme  Court  of  New  York  in 
Commonwealth  of  Kentucky  v.  Bassford,  6  Hill  (N.  Y.),  526.  That 
was  an  action  upon  a  bond  executed  in  New  York  conditioned  for  the 
faithful  performance  of  the  duties  enjoined  by  a  law  of  Kentuck}-  autho- 
rizing the  obligees  to  sell  lottery"  tickets  for  the  benefit  of  a  college  in 
that  State.  It  was  held  that  the  stipulations  of  the  bond  were  to  be 
performed  in  Kentucky,  and  that,  as  it  was  valid  by  the  laws  of  that 
State,  the  courts  of  New  York  would  enforce  it,  notwithstanding  it 
would  be  illegal  in  that  State. 

Boyle  V.  Zacharie,  6  Pet.  635,  is  a  direct  authority  upon  the  point. 
There  Zacharie  and  Turner  were  resident  merchants  at  New  Orleans, 
and  Boyle  at  Baltimore.  The  latter  sent  his  ship  to  New  Orleans, 
consigned  to  Zacharie  and  Turner,  where  she  arrived,  and,  having 
landed  her  cargo,  the  latter  procured  a  freight  for  her  to  Liverpool. 
"When  she  was  ready  to  sail  she  was  attached  by  process  of  law  at  the 
suit  of  certain  creditors  of  Boyle,  and  Zacharie  and  Turner  procured 
her  release  by  becoming  security  for  Boyle  on  the  attachment.  Upon 
information  of  the  facts,  Boyle  promised  to  indemnify  them  for  any  loss 
they  might  sustain  on  that  account.  Judgment  was  rendered  against 
them  on  the  attachment  bond,  which  they  were  compelled  to  pay,  and 
to  recover  the  amount  so  paid  they  brought  suit  in  the  Circuit  Court 
for  Maryland  against  Boyle  upon  his  promise  of  indemnit}-.  A  judg- 
ment was  rendered  b}'  confession  in  that  cause,  and  a  bill  in  equity 
was  subsequently  filed  to  enjoin  further  proceedings  on  it,  in  the  course 
of  which  various  questions  arose,  among  them,  whether  the  promise  of 
indemnity  was  a  Maryland  or  a  Louisiana  contract.  Mr.  Justice  Story, 
delivering  the  opinion  of  the  court,  said  :  "  Such  a  contract  would  be 
understood  by  all  parties  to  be  a  contract  made  in  the  place  where  the 
advance  was  to  be  made,  and  the  payment,  unless  otherwise  stipulated, 
would  also  be  understood  to  be  made  there  ;  "  "  that  tlie  contract  would 
clearl}'  refer  for  its  execution  to  Louisiana." 

The  very  point  was  also  decided  by  this  court  in  Bell  v.  Bruen, 
1  How.  169.  That  was  an  action  upon  a  guaranty  written  by  the  de- 
fendant in  New  York,  addressed  to  the  plaintiffs  in  London,  who,  at 
the  latter  place,  had  made  advances  of  a  credit  to  Thorn.  The  opera- 
tive language  of  the  guaranty  was,  "  that  3'ou  may  consider  this,  as 
well  as  any  and  every  other  credit  you  may  open  in  his  favor,  as  being 
under  my  guaranty."  The  court  said  :  "  It  was  an  engagement  to  be 
executed  in  England,  and  must  be  construed  and  have  effect  accord- 
ing to  the  laws  of  that  country,"  citing  Bank  of  the  United  States  a. 


480  CARNEGIE    V.   MORRISON.  [CHAP.  X. 

Daniel,  12  Pet.  54.  As  the  money  was  advanced  in  England,  the 
guaranty  required  that  it  should  be  replaced  there,  and  that  is  the 
precise  nature  of  the  obligation  in  the  present  case.  Pritchard  could 
only  be  indemnified  against  loss  and  damage  on  account  of  his  liability 
on  the  appeal  bond,  by  having  funds  placed  in  his  hands  in  Louisiana 
wherewith  to  discharge  it,  or  by  being  repaid  there  the  amount  of  his 
advance.     To  the  same  effect  is  Woodhull  v.  "Wagner,  Baldw.  296. 

We  do  not  hesitate,  therefore,  to  (1(  eide  t.lif^t  |,|ie  bond  of  indemnity 
sued_^on  was  eutcred  ialu  with  a  view  to  the  law  of  Louisiana  as  the 
place  for  the  fultllinent  of  its  obligation;  and  that  the  question  of  its 
validity,  as  depending  on  the  character  and  sufSciencv  of  the  considera- 
tion, should  be  deterniiued  by  the  law  of  Louisiana,  and  not  that  of 
New  York.  For  error  in  its  rulings  on  this  point,  consequently,  the 
judgment  of  the  Circuit  Court  is  reversed,  with  directions  to  grant  a 
new  trial.  New  trial  ordered.^ 


CARNEGIE  V.  MORRISON. 
Supreme  Judicial  Court  of  Massachusetts.     184L 

[Reported  2  Metcalf,  381.] 

Shaw,  C.  J.^  Action  of  assumpsit,  brought  by  Carnegie  '^-  ^^'^  ,  a, 
mercantile  firm  aTTjottenburg.  SwodRnf  against  Messrs.  Morrison. 
*"TTiy  der.  &  Co.,  of  Tiopdon.  The  action  is  founded  upon  a  letter  of 
credit  given  by  the  defendants,  by  Mr.  Oliver,  their  general  agent, 
residing  in  Boston,  upon  the  application  of  Mr.  John  Bradford,  in 
favor  of  the  plaintiffs,  and  for  the  purpose  of  paying,  in  part,  a  large 
debt  due  from  Bradford  to  the  plaintiffs  for  merchandise  before  shipped 
to  him  on  credit.     The  letter  of  credit  is  of  the  following  tenor : 

"  Boston,  4  March,  1837. 
"  Messrs.  Morrison,  Crtder,  &  Co.,  London  :  —  Mr.  John  Bradford 
of  this  city  having  requested  that  a  credit  may  be  opened  with  j'ou  for 
his  account  in  favor  of  Messrs.  D.  Carnegie  &  Co.  of  Gothenburg  for 
three  thousand  pounds  sterling,  I  have  assured  him  that  the  same  will 
be  accorded  l)y  you  on  the  usual  terms  and  conditions. 
"  Respectfully  your  obt.  serv't, 

"  Francis  J.  Oliver. 
"For  £3,000." 

It  appears  by  the  evidence  that  Oliver  was  the  general  agent  of  the 
defendants  in  Boston  ;  that  this  letter  of  credit  was  obtained  upon  the 

1  Ace.  Seiders  v.  Merchant's  Life  Assoc,  93  Tex.  104,  54  S.  W.  7.53.  Conversely 
it  has  been  held  that  a  contract  vali<l  at  the  ])lace  of  nuikiiis^  but  void  by  the  law  of 
the  pl;ice  of  performance  is  invalid.  Ilawley  v.  Bibb,  6'J  ^VJa.  52  {scmble) ;  Thayer  v. 
Elliott,  16  N.  II.  102. —  Ed. 

2  Part  of  the  oj>iiiion  only  is  given. — Ed. 


SECT.  Ill]  CARNEGIE    V.   MORRISON.  481 

application  of  Bradford,  and  was  immediately  forwarded  to  the  plain« 
tiffs  at  Gottenburg ;  and  that  notice  of  it  was  given  to  the  defendants 
at  London.  Mr.  Oliver  knew  the  purpose  for  which  Bradford  wanted 
it.  He  had  often  had  similar  letters  of  credit  from  Mi'.  Oliver  before  ; 
all  of  which  have  been  honored,  except  one  other  in  favor  of  Scholfield 
&  Co.,  which  is  now  in  controvers}-  in  this  court.  Mr.  Bradford  was 
accustomed  to  give  satisfactory  security,  from  time  to  time,  to  Mr. 
Oliver,  and  to  pa}'  the  defendants  a  commission  of  one  per  cent.  It 
also  appears  that  upon  the  strength  of  this  letter  of  credit,  the  plaintiffs 
drew  a  bill  or  bills  on  the  defendants,  according  to  the  usual  mode  of 
drawing  bills  at  Gottenburg  on  London,  which  the  defendants  declined 
accepting.  Various  other  circumstances  were  given  in  evidence,  but 
this  is  a  summary  of  the  leading  facts  in  the  case. 

This  action,  if  it  can  be  maintained  at  all,  as  between  these  parties, 
must  be  maintained  on  the  letter  of  credit.  But  a  question  meets  us  at 
the  outset,  what  law  shall  determine  the  rights  of  the  parties  in  this 
transaction  ?  It  is  obvious  that  the  undertaking  of  the  defendants  was 
to  do  some  act  out  of  this  country.  The  substance  of  that  undertaking 
was  to  give  Bradford  a  credit  for  the  use  and  benefit  of  Carnegie  &  Co.  ; 
in  other  words,  the  suljstance  and  effect  of  that  undertaking  was  to  pay 
a  sum  of  money  to  Carnegie  &  Co.  in  discharge  of  Bradford's  debt  to 
them,  by  means  of  bills  of  exchange  to  be  drawn  by  Carnegie  &  Co.  on 
the  defendants,  in  their  own  favor,  or  in  favor  of  their  appointee,  for 
their  use,  in  consideration  of  the  promise  of  Bradford  to  provide  funds 
to  meet  those  bills,  giving  them  satisfactory  security,  placed  in  the 
hands  of  their  agent,  and  in  further  consideration  of  a  commission  of 
one  per  cent  paid  by  Bradford. 

In  considering  the  nature  of  this  transaction,  the  inquiry  involves 
two  questions  :  first,  whether  the  transaction  in  question  constitutes 
a  contract,  in  which  the  plaintiffs  have  an  interest ;  and,  secondly, 
whether  the  interest  of  the  plaintiffs  in  this  contract  is  of  such  a  char- 
acter that  they  can  maintain  an  action  upon  it  in  their  own  names. 
The  question,  therefore,  does  not  depend  exclusively  upon  the  lex  fori, 
although,  as  the  action  is  brought  in  this  Commonwealth,  its  laws  must 
determine  whatever  relates  to  the  remedy.  Supposing  that  the  lex  loci 
contractus  is  also  to  have  a  bearing  on  the  question,  it  must  be  consid- 
ered that  some  of  the  rules  applicable  to  the  construction  and  effect  of 
contracts  are  founded  in  positive  law,  estabUshed  by  usage  or  by  stat- 
ute, which  each  country  will  establish  for  itself,  according  to  its  own 
views  of  convenience  and  policy,  and  have  a  local  operation  ;  whilst 
others  are  derived  from  those  great  and  unchangeable  principles  of 
duty  and  obligation  which  are  everywhere  recognized  amongst  mer- 
cantile communities,  and  indeed  amongst  all  civilized  nations,  as  lying 
at  the  foundation  of  civil  contracts,  and  must  be  considered  as  having 
the  same  effect,  wherever  by  the  comity  of  nations  contracts  made  in 
one  country  are  allowed  to  be  carried  into  effect  by  tlie  laws  of  another. 
In  some  States,  for  instance,  a  bond  made  to  one  or  his  assigns  is  re- 
Si 


482  CARNEGIE   V.   MORRISON.  [CHAP.  X. 

garded  as  a  negotiable  instrument,  and  creates  an  obligation  to  paj'  to 
the  obligee,  or  an}'  person  who  shall  legally-  become  the  assignee  of 
it.  In  others,  a  note  for  money,  paAable  to  one  or  order,  creates  a 
legal  obligation  to  the  payee  only,  and  an  indorse^e  cannot  maintain  a 
suit  in  his  own  name.  Whether  an  instrument,  made  in  a  particular 
form,  shall  have  the  one  or  the  other  construction,  will  depend  upon 
the  positive  law  of  the  country  which  governs  it ;  and  such  law  there- 
fore will  determine  the  nature  and  legal  obligation  of  the  contract  cre- 
ated by  it ;  it  is  positive  law,  concurring  with,  and  giving  effect  to,  the 
act  of  the  parties,  which  determines,  the  nature  and  extent  of  such  con- 
tract. But  that  a  party  entering  into  a  formal  stipulation  to  pay 
money,  or  do  some  other  beneficial  act  to  or  for  another,  shall  substan- 
tially perform  that  undertaking,  is  a  great  principle  of  moral  as  well  as 
legal  obligation,  and  of  international  as  well  as  municipal  law,  recog- 
nized everywhere. 

Taking  it  as  settled,  in  the  present  case,  that  the  defendants  became 
subject  to  a  duty  or  obligation  of  some  kiud,  the  real  subject  of  discus- 
sion is  not  merely  as  to  the  remedy,  but  whether  the  facts  now  in  proof 
constituted  a  contract  between  these  parties  which  may  be  enforced  by 
an  action. 

The  objection  to  such  an  action,  and  the  ground  of  this  defence,  are 
that  the  immediate  parties  to  the  transaction  were  Bradford  on  the  one 
side  and  the  defendants  on  the  other ;  that  to  this  transaction  the 
plaintiffs  were  strangers;  and  that  as  Bradford  acquired  some  right 
under  it,  and  had  a  remedy  upon  it  against  the  defendants,  their  con- 
tract must  be  deemed  to  be  made  with  him  and  not  with  the  plaintiffs. 
But  this  position  presupposes  that  the  same  instrument  may  not  con- 
stitute a  contract  between  the  original  parties,  and  also  between  one  or 
both  of  them  and  others,  who  ma}-  subsequently  assent  to,  and  become 
interested  in  its  execution  ;  an  assumption  quite  too  broad  and  unlim- 
ited, wliich  tlie  law  does  not  warrant.  In  a  common  bill  of  exchange, 
the  drawer  contracts  with  the  payee  that  the  drawee  will  accept  the 
l)ill ;  with  the  drawee,  that  if  he  does  accept  and  pay  the  bill,  he,  the 
drawer,  will  allow  the  amount  in  account,  if  he  has  funds  in  the  drawee's 
hands ;  otherwise,  that  he  will  reimburse  him  the  amount  thus  paid. 
II(!  also  contracts  with  any  person  who  may  become  indorsee,  that  he 
will  pay  iiiin  the  amount  if  the  drawee  does  not  accei)t  and  pay  the  i)ill. 
The  law  creates  the  privit}'.  So  in  the  familiar  case  of  money  had  and 
received,  if  A.  deposits  monej'  with  B.  to  the  use  of  C,  the  latter  may 
have  sin  action  against  B.,  though  they  are  in  fact  strangers.  But  if 
C,  not  choosing  to  look  to  B.  as  his  debtor,  calls  upon  A.  to  pay  him, 
notwithstanding  such  deposit  (as  he  may),  and  A.  pays  him,  A.  shall 
have  an  action  against  B.  to  recover  back  the  money  deposited  if  not 
repaid  on  notice  and  demand.  The  law,  operating  upon  the  act  of  the 
parties,  creates  the  duty,  establishes  the  privity,  and  implies  tlie  prom- 
ise and  obliijation  on  wliich  the  action  is  I'oundod.  Hall  r.  Marston.  17 
Mass.  575.     So  in  regard  to  a  very  common  transaction ;  when  one 


5;ECT.  III.]  CARNEGIE    V.    MOKKISOX.  483 

deposits  money  in  a  bank  to  the  credit  of  a  third  person,  and  forwards 
him  a  certificate,  or  other  evidence  of  the  fact,  the  bank  is  regarded  as 
coming  under  an  obHgation  to  pay  the  mone}'  to  the  person  to  whose 
credit  it  is  thus  deposited.  So  it  is  held  in  England,  when  the  depos- 
itary assents  to  receive  the  money,  though  there  is  no  consideration 
moving  from  the  plaintiff  to  the  defendant.  Lilly  v.  Hays,  5  Adolph. 
&  Ellis,  548,  We  think,  therefore,  it  is  no  decisive  objection  to  an 
action  by  the  plaintiffs,  that  the  act  done  constituted,  at  the  same  time, 
a  contract  between  the  defendants  and  Bradford,  on  which  the  latter 
might  provisionally  have  had  a  remed}',  in  case  the  plaintiffs  should 
not  assent  to,  and  enforce  the  contract,  so  far  as  it  was  intended  for 
their  benefit. 

From  this  view  of  the  case,  it  is  manifest  that  the  (piestion  whether 
a  particular  transaction  constitutes  a  contract,  and  between  whom, 
^on  which  one  part}'  can  have  a  remedy  against  another  by  I'udiciaJ 
proceedings  must  depend  upon  the  law  governing  such  contract,  as. 

well  as  thft  law  of  the  forum  where  it  is  sought  to  be  enforced. Thfi 

remedy  may  be  sought  in  the  form  of  an  action  at  law^^ur.  a  bilLia 

^c[uity.,jir_lM!Jbj'£Jiiij;.spedgJ_tvLbunal,  according  ta  tl4e4arW^-of-tbe^>k;ee- — 
where  jtJs-SQUgbJbiL^ut  the  qnestiojLwliether-a-partteiriaract  ur  iirstru- 

^ent  constitutes  .a  coati-act,  and  between  what  parties,  is  previousJn 

"jts  nature^aaidJiiust-genei-ally  be  settled  before  any  question  of  rcmedy- 

_ariaes^_— - 

What  then  is  the  law  of  the  contract,  or,  in  other  words,  what  law  I   , 
determines  whether  an  act  done  constitutes  a  contract,  and  if  so,   be-y  0^^ 
tween  whom  and  to  what  effect?    The  general  rule  certainly  is,  that_the 
lex  loci  contractus  determines  the  nature  jind  jegaLqAtalit}'  of  the-ajd£ 

"doneT~whether  it  constitutes  a  contract ;  the  nature  and  validity,  obli- 
gatioii  alKflegaT effect  of  such  contract ;  and  furnishes  the  rule  of  con^ 
struction  and  interpretation.  There  ma}',  perhaps,  be  exceptions  to 
this  rule  ;  as  wliere  partTes  happen  to  meet  on  a  desolate  island  in  a 
savage  country,  where  the  principles  of  commerce  and  civilization  do 
not  prevail,  or  where  a  settled  municipal  law  is  not  enforced  or  re- 
garded. Perhaps  such  would  be  the  construction  of  a  contract  between 
American  or  European  merchants  in  China,  who  rather  reside  on  the 
confines  of  that  empire  than  live  under  its  government;  and  where 
they  may  be  presumed  to  have  reference,  in  their  dealings,  to  the  gen- 
eral laws  and  usages  of  tlie  commercial  world,  without  regard  to  the 
laws  of  the  people  with  whom  they  temporarily  reside.  But  a  contract, 
made  in  one  country,  may  contemplate  the  execution  of  deeds  or  other 
contracts,  making  payments,  or  doing  other  legal  acts  in  another ;  in 
regard  to  which,  the  law  of  the  foreign  country,  wliere  the  act  is  to  be 
done,  will  govern  the  contract ;  and  the  obligation  of  such  contract 
will  bind  the  contracting  party  to  do  all  such  legal  acts  according  to 
the  law  of  the  place  where  they  are  to  operate,  so  as  to  have  their  full 
legal  effect.  As  if  a  person  in  one  country  should  contract  to  convey 
land  in  another ;  the  general  rule  being  that  the  lex  loci  rei  sitce  fur- 


484  CAKNEGIE    V.    MOERISON.  [CHAP.  X. 

nishes  the  rule  which  regulates  titles  and  conveyances  of  real  estate, 
the  true  construction  and  legal  effect  of  such  contract  would  be  that 
the  convej'ance  should  be  executed  in  such  form  as  effectually  to  trans- 
fer the  title  according  to  the  law  of  the  place  where  the  land  lies.  If 
the  land  were  in  Massachusetts,  where  the  law  requires  the  execution 
and  acknowledgment  of  a  deed,  it  would  bind  the  contracting  party  to 
execute  and  aclvnowledge  such  deed,  though  made  in  a  countr\'  where, 
by  its  municipal  law,  a  deed  would  not  be  necessary.  If  the  stipulation 
be  that  the  drawee  shall  accept  a  bill  in  a  foreign  country,  and  the  law 
of  that  countrj'  require  that  a  valid  acceptance  shall  be  in  writing, 
though  not  required  by  the  law  of  the  place  wliere  drawn,  it  is  a  con- 
tract that  the  drawee  shall  accept  the  bill  in  writing. 

That  the  transaction  now  in  question  constituted  a  good  contract  to 
some  purpose,  and  between  some  parties  ;  that  it  was  made  on  a  good, 
valuable,  and  adequate  consideration,  and  made  in  Massachusetts,  is 
not  contested.  Then  the  rule  prima  facie  is,  that  the  construction 
and  legal  effect  of  this  transaction  are  to  be  determined  by  the  law  of 
Massachusetts.  That  is  the  law  which  must  be  regarded,  in  the  first 
instance,  in  deciding  whether  the  act  done  constituted  a  contract,  and 
if  so,  between  whom,  and  to  what  effect,  and  must  prevail  unless  the 
case  falls  within  some  exception  to  the  general  rule  ;  and  the  question 
is  whether  it  does.  It  is  true  that  the  parties  to  this  suit  are  both 
foreigners,  one  residing  in  Sweden  and  the  other  in  England.  This, 
however,  is  immaterial,  and  only  respects  the  question  who  may  sue 
and  be  sued  in  our  courts.  By  the  comity  of  nations,  alien  friends  are 
allowed  the  benefit  of  our  courts  in  seeking  their  civil  rights  as  plain- 
tiffs ;  and  the  defendants,  by  placing  their  property'  under  the  control 
and  protection  of  our  government,  place  themselves  within  the  juris- 
diction of  our  courts.  But  the  immediate  actors  in  the  transactions 
were  here.  Bradford,  the  prime  mover,  who  opened  and  conducted  the 
negotiation,  paid  the  consideration,  and  caused  the  obligation  to  be 
entered  into,  was  a  resident  citizen  of  Massachusetts  ;  and  though  in 
legal  strictness  he  might  not  be  considered  as  the  agent  of  the  plain- 
tiffs before  the}'  had  assented  to  and  adopted  his  act,  yet  still  he  so  far 
acted  for  them  as  to  procui'e  a  stipulation,  which,  if  executed,  would 
inure  to  their  benefit.  The  other  party,  though  domiciled  abroad,  were 
here  for  the  purpose  of  conducting  mercantile  and  financial  business  by 
their  regularly  constituted  resident  agent.  The  money  was  paid,  or  the 
security  given,  in  Boston,  which  constituted  the  consideration  for  the 
defendants'  undertaking.  The  negotiation,  which  terminated  in  giving 
the  letter  of  credit,  was  commenced  and  completed  in  Boston. 

That  some  things  are  referred  to  foreign  laws  and  usages,  in  this 
agreement,  is  manifest  in  the  instrument  itself.  The  words,  "on  the 
usual  terms  and  conditions,"  are  obviously  of  this  character.  They 
refer  to  the  laws  and  usages  both  of  Sweden  and  England.  All  parties, 
of  course,  knew  that  the  credit  was  to  be  given  b}'  the  defendants  by 
means  of  bills  of  exchange,  although  this  is  not  expressed  in  terms. 


SECT.  III.]  CAENEGIE    V.    MORRISON.  485 

Supposing  that  the  object  was  that  this  credit  should  be  afforded  by 
means  of  bills  of  exchange,  to  be  drawn  by  Carnegie  &  Co.  in  Gotten- 
bnrg,  on  Morrison  &  Co.  in  London,  the  instrument  refers  to  the  laws 
atiJ  usages  of  Sweden  for  the  mode  of  drawing,  and  to  those  of  Eng- 
land for  the  mode  of  acceptance  ;  and  the  legal  effect  and  obligation  of 
the  contract  in  Boston  are  that  the  parties  will  respectivel}'  conform  to 
those  Iii.vs  and  usages  in  the  performance  of  their  respective  acts.  But 
it  is  not  as  to  the  non-observance  of  an}-  of  these  that  the  question 
arises.  The  gravamen  of  the  complaint  is  that  the  defendants  have 
violated  the  obligation  of  their  contract  in  its  entire  substance.  It 
becomes,  therefore,  necessary  to  inquire  and  ascertain  more  exactly 
what  that  contract,  in  its  legal  effect  and  operation,  was.  The  sub- 
stance of  the  undertaking  of  the  defendants  ma}',  we  think,  be  sim- 
plified and  expressed  thus  :  Whereas,  John  Bradford  is  indebted  to 
Messrs.  Carnegie  &  Co.  of  Gotten jpurg,  in  the  sum  of  £3,000,  and  has 
requested  us_to  pay  them  that  amount  for  him,  by  means  of  bills  of__ 
exchange  to  be  drawn  on  us  at  LondoxL:  we  hereby,  for  value  received 

^ofTiim  for  that  purpose,  to  our  satisfaction,  promise  to  accept  their 
bills~To  that  amount,  payable  to  themselves  or  their  order,  and  pay 

~^theDa~accordingly. 

The  question  is,  supposing  a  general  failure  in  the  performancejof^  ; 
this  undertaking,  who  is  entitled  to  a  remedy  for  such  breach^a,nd  b^  ^ 
what  law  shall  this  question  be  deteriningd  ?  The  assurance  or  promise 
is  hi'terms  macTeTo'^adford ;  but  the  substantial  benefit  to  be  derived 
from  the  performance  of  it  would  be  the  plaintiffs',  and  therefore  the}'' 
are  damnified  by  the  breach.  Bradford  had  procured  the  defendants  to 
pay  his  debt  for  him  to  the  plaintiffs  for  a  satisfactory  pecuniary  con- 
sideration, and  immediately  gave  notice  thereof,  and  remitted  the  con- 
tract to  the  plaintiffs,  who  assented  to  and  accepted  it.  It  may  be 
fairly  presumed  that,  but  for  this  transaction,  Bradford  would  have 
adopted  some  other  mode  of  remittance.  Regarding  it  as  a  question  of 
principle  and  not  of  technical  law,  it  was  an  undertaking  in  which  the 
plaintiffs  had  an  interest  nearly  or  quite  as  direct,  and  as  great,  as  if 
the  promise  had  been  in  terms  to  them,  or  the  negotiation  had  been 
with  them  ;  or  as  if  the  instrument  had  been  a  promissory  note,  pro- 
cured by  Bradford  to  be  made  payable  to  them,  in  consideration  of 
money  paid  and  security  given  by  him.  and  such  note  afterwards  re- 
mitted to  and  received  by  them.  Upon  these  facts,  the  court  are  of 
opinion^ that  the  construction,  the  o"BTigati6n,  the  legal  effect  and  oper- 
ation of  this  transaction  are  to-be  governed  by  the  law  of  Massachu- 
setts: So  far  as  this  transaction  constltuteTr"a  legal  and  binding 
""contact  at  all,  it  was,  we  think,  by  force  of  the  law  of  the  place  of 
contract  operating  upon  the  act  of  the  parties,  and  giving  it  force  as 
such.  The  undertaking,  it  is  true,  was  to  do  certain  acts  in  England, 
to  wit,  to  accept  and  pay  the  i>laintiffs'  bills  ;  but  the  obligation  to  do^ 
those  acts  was_created  here,  by  force  of  the  law  of  this_State^giving 
force  ancTeffect  to  the  uliclertaking  of  the  defendants'  agent,  and  ma]^ 


'  ^6  AEBUCKLE   V.   REAUME.  [CHAP.  X. 

hg  it  a  contract  binding  on  them.  Supposing  tlie  law  of  England  had 
provided  that  no  letter  of  credit  should  be  issued,  unless  under  seal,  or 
stamped,  or  attested  by  two  witnesses,  or  acknowledged  before  a  no- 
tar\-,  is  it  not  clear  that,  as  no  such  formalities  are  required  by  our 
laws,  a  letter  of  credit  made  here  would  be  held  good  without  such  for- 
malities? "VVe  thiuk  it  would  be  so  held  even  in  England,  under  the 
authority  of  the  general  rule,  that  a  contract,  valid  and  binding  at  the 
place  where  made,  is  binding  ever^'where.  There  is  no  reference,  tacit 
or  express,  in  this  instrument,  to  tlie  laws  of  England,  which  can  raise 
a  presumption  that  the  parties  looked  to  them  as  furnishing  the  rule  of 
law  which  should  govern  this  contract.  It  was,  therefore,  in  our  opin- 
ion, in  legal  effect,  a  contract  made  in  Massachusetts  by  parties,  both 
of  whom  were  here  by  their  agents,  or  persons  acting  for  their  benefit 
and  in  their  behalf,  and  therefore  the  nature,  obHgation,  and  effect  of 
this  contract  must  be  governed  by  the  law  of  this  Commonwealth. 


ARBUCKLE  v.   REAUME. 
Supreme  Court  of  Michigan.     1893. 

[Reported  96  Michigan,  243.] 

Long,  J/  This  action  was  brought  to  recover  upon  two  promissory 
notes,  dated  February  4,  1889,  and  executed  and  deUvered  to  the  plain- 
tiffs' agent  in  this  State,  but  payable  at  plaintiffs'  office,  at  Toledo,  Ohio. 
The  defendant,  Peter  Donnelly,  pleaded  the  general  issue,  and  denied 
the  execution  of  the  notes.  The  other  defendants  did  not  appear,  and 
were  defaulted. 

It  was  admitted  that,  while  the  notes  bore  date  as  of  Monday,  they 
■were  in  fact  executed  and  delivered  to  the  agent  of  the  payees  in  this 
State  on  Sunday.  The  court  below  ruled  that,  though  the  notes  were 
executed  and  delivered  in  this  State  on  Sunday,  yet,  the  testimony 
showing  that  the  office  of  the  plaintitis  was  in  Ohio,  and  the  contract  to 
be  performed  there,  that  tliey  were  not  void,  under  section  2015,  How. 
Stat.,  as  the  laws  of  Ohio,  and  not  of  Michigan,  governed  the  transac- 
tion ;  and  judgment  was  given  in  favor  of  tlie  plaintiffs.   .   .   . 

The  court  below  was  in  error  in  holding  that  the  notes  could  be 

1  Part  of  the  o])inion  is  omitted.  —  En. 


SECT.  III.]  BAXTER   NATIONAL    BANK   V.   TALBOT.  487 

enforced  here  b}'  reason  of  being  made  payable  in  Ohio.  Parties  can- 
not be  allowed  to  defy  our  laws,  and  recover  upon  a  contract  void  from 
its  inception  under  our  statute,  by  making  the  place  of  payment  out  of 
the  State. 

It  is  an  elementary'  principle  that  one  who  has  himself  participated 
in  a  violation  of  law  cannot  be  permitted  to  assert  in  a  court  of  jus- 
tice any  right  founded  upon  or  growing  out  of  the  illegal  transaction. 
7  Wait,  Act.  &  Def.  p.  114  ;  Myers  v.  Meinrath,  3  Amer.  Rep.  371. 

The  judgment  must  be  reversed,  and  a  new  trial  ordered. 

The  other  justices  concurred.^ 


BAXTER  NATIONAL   BANK   v.   TALBOT. 

SuPKEME  Judicial  Court  of  Massachusetts.     1891. 
[Reported  154  Massachusetts,  213.] 

Morton,  J.  The  plaintiff  seeks  to  recover  in  this  suit  from  the  de- 
fendant as  indorser  on  five  promissor}-  notes,  and  to  reach  and  apply  in 
payment  of  them  the  interest  of  the  defendant  in  a  partnership  of  which 
he  is  a  member.  The  notes  were  made  by  the  Esperanza  Marble 
Company,  to  its  ow-n  order,  were  indorsed  in  blank  b}'  it  and  the 
defendant,  and  b}'  two  other  parties,  and  were  all  made  pa3'able  at 
the  "  Baxter  National  Bank,  Rutland,  Vt.,"  which  we  assume  to  be 
the  plaintiff  bank.  This  suit  is  against  the  defendant  alone.  .T he- 
defendant  in  his  answer  alleged^tbat  his  indorsement  was  made  and  took 
effect  as  a  contract  in  the  State  of  Vermont,  and  that  by  the  law  of  , 
that  State  bis  obligation  depended,  as  between  th*^  plaintifF  ?^]^d  Vfimspjfr 
or  any  other  uartv  takinof  the  notes  witl^  nntire.  np""  ^hp  nnrlpr^f,anding 
or  agreement.  bpt,\Y^pn  t.hp.  b.ink  and  himself  at  the  t.imp  whpn  eanh  in-  , 
dorsement  was  made  in  regard  to  said  indorsement.  The  defendant 
further  alleged  that  his  indorsei£.8nt  was  in  fact  made  subject  to  an 
oral  agreement  with  the  plaintiff,  which  the  defendant  has  fully  per- 
formed, that  "  he  was  not  to  be  liable  thereon  except  to  the  amount 
of  any  moneys  which  he  might  receive  upon  a  certain  mortgage  upon 
property  in  the  State  of  New  York."  At  the  trial,  the  defendant 
offered  testimony  tending  to  prove  these  allegations.  The  court  re- 
ceived it  de  bene,  and  at  the  conclusion  of  all  the  testimony  ruled  that 
the  lex  fori  and  not  the  lex  loci  contractus,  must  govern  the  case  ; 
that  the  oral  agreement  and  the  evidence  tending  to  prove  it  were  inad- 
missible and  immaterial,  and  could  not  be  considered  by  the  jury.  The 
defendant  excepted  to  this  ruling,  and  the  question  before  us  is  as  to  its 
correctness. 

1  Ace.  Swann  v.  Swann,  21  Fed.  299  ;  McKee  v.  Jones,  67  Miss.  405,  7  So.  348 
^Ed. 


4S8  BAXTER   NATIONAL   BANK   V.   TALBOT.  [CHAP.  X. 

The  testimon}'  introduced  b}-  the  defendant  tended  to  show  the  fol- 
lowing, among  other  facts,  in  regard  to  liis  indorsement  of  the  notes  ia 
suit.  In  January-,  1887,  the  plaintiff  banlc  held  overdue  notes  which  it 
had  discounted  for  the  Esperanza  Marble  Company  of  New  York,  but 
which  had  its  usual  place  of  business  in  Rutland.  Part  of  these  notes 
were  indorsed  by  the  defendant.  The  plaintiff  also  held  a  mortgage  on 
certain  property  in  New  Yorli  as  collateral  to  these  notes,  but  found  it 
inconvenient  to  attend  to  its  collection,  and  requested  the  defendant  to 
attend  to  it  in  its  behalf;  and  it  was  orally  agreed  between  the  defend- 
ant and  the  plaintiff  that  the  mortgage  should  be  assigned  to  the  de- 
fendant, and  that  he  shouki  collect  the  same  and  pay  over  the  proceeds 
to  the  bank.  It  was  also  orally  agreed  that  the  notes  held  by  the  bank 
against  the  Marble  Company  should  be  surrendered  to  it  and  new  notes 
given  by  it  therefor,  which  should  be  indorsed  by  the  defendant  and 
the  other  two  parties  whose  names  are  on  the  notes  in  suit,  and  that 
the  notes  should  be  renewed  from  time  to  time  as  they  fell  due,  the 
renewals  being  indorsed  by  the  same  parties,  until  the  total  amount 
collectible  on  the  mortgage  had  been  received  and  paid  over  by  the 
defendant  to  the  plaintiff  bank.  It  was  further  orally  agreed  that 
the  defendant  should  not  be  liable  on  his  indorsements  beyond  the 
amount  which  he  might  receive  on  account  of  the  mortgage  and  fail  to 
pay  over  to  the  plaintiff,  and  that  he  should  be  held  liable  on  his  in- 
dorsements onl}'  to  secure  the  performance  of  his  agreement  to  collect 
and  pay  over  on  account  of  the  mortgage.  The  agreement  thus  made 
was  carried  out.  The  overdue  notes  of  the  IMarble  Company  were  sur- 
rendered to  it,  and  new  notes,  indorsed  by  the  defendant  and  the  other 
pai-ties,  were  taken  in  their  stead.  These  have  been  renewed  from  time 
to  time,  the  renewals  being  indorsed  by  the  same  parties,  and  the  notes 
in  suit  are  renewals  of  said  original  notes.  The  notes  have  all  been 
made  payable  at  the  plaintiff  bank  in  Rutland,  and  the  defendant's  in- 
dorsement upon  all  of  them  was  made  and  took  effect  as  a  contract 
made  in  Vermont.  The  mortgage  was  assigned  to  the  defendant,  and 
he  has  paid  over  to  the  plaintiff  bank  all  the  money  which  he  has 
collected  under  it. 

The  jury  found  by  direction  of  the  court  that  the  notes  in  suit  were 
nuulf  p;i\able  in  the  State^of  Vermont,  and  that  the  defendant's  indorse- 
ment was  niade  and  took  effect  as  a  contract  in  that  State. 

It  is  apparent  that,  if  the  lex  fori  is  to  govern,  the"3eleiidant  cannot 
avail  himself  of  the  oral  agreement  entered  into  between  the  plaintiff 
and  himself.  Adams  v.  Wilson,  12  Met.  138  ;  Wright  r.  Morse,  9  Gray, 
337.  We  do  not  think,  however,  that  it  should  govern.  It  is  clear^ 
that  in  all  that  relates  to  a  contract,  to  its  nature  and  validity  and  iiv; 
terpretatioji,  the  law  of  the  place  where  it  is  made  yf^v»'-"°- — Gftojegia. 
V.  Morrison,  2  Met.  381  ;  Milliken  i'.  Pratt,  125  Mass.  374;  Shoe  & 
Leather  National  P>ank  v.  Wood,  142  Mass.  563  ;  Fonseca  v.  Cunard 
Steamship  Co.,  153  Mass.  553  ;  Nichols  i'.  Mase,  94  N.  Y.  160  ;  Buzzell 
V.  Cummings,  61  Vt.  213  ;  Forepaugh  r.  Delaware,   Lackawanna,   & 


SECT.  III.]  BAXTER   NATIONAL   BANK    V.   TALBOT. 


489 


Western  Railroad,    128  Penn.   St.   217;    Liverpool  &  Great  Western 
Steam  Co.  v.  Phenix  Ins.   Co.,   129  U.  S.  397,  453.     The  law  of  the 
place  where  the  contract  is_made  is,  without  am;  express  assent  or^ 
agreement  of  the  parties,  incorporated  into  and  forms  a  part  of  tLe 
contract^     ContraclsjiSe^cisJumed  to  be  made  with  reference  to  the 
/H!aw  of  the  place  where  they  are  entered  iutOj  unless  it  appears  thaC 
)  ttiey  were  entered  into  with  reference  to  the  law  of  some  other  State  qy 
J  comrtfjT^    Central  Bank  of  Washington  v.  Hume,  128  U.  S.  195,  207  ; 
'    Chopin  V.  Dobson,  78  N.  Y.  74. 

*'  A  contract  valid  in  the  State  or  country  where  it  is  mad^jvUl  be^n- 
forced^ven  in  a  State  or  country  where  it  would  be  invalid,  provided  it 
be  not  th^e  contrary  to  public  policy  or  morals.  Parsons  v.  Trask, 
7^ra3',  473;  Milliken  v.  Pratt,  125  Mass.  374;  Fonseca  v.  Cunard 
Steamship  Co.,  153  Mass.  553;  Forepaugh  v.  Delaware,  Lackawanna, 
&  Western  Railroad,  128  Penn.  St.  217. 

Oil, the  other  hand,  it  is  equally  clear  that,  in  all  that  relates  to  the 
procedure  for'eiifoi-cing  a~contract,~the  law  of  the  forum  controls.  Car- 
negie u.  Morrison,  2  Met.  381  ;  Hoadle}'  v.  Northern  Transportation 
Co.,  115  Mass.  304;  Shoe  &  Leather  National  Bank  v.  Wood,  142 
Mass.  563.  Thus  the  form  in  which  and  the  parties  by  or  against 
whom  the  action  shall  be  brought,  the  competency  of  the  evidence 
offered  to  establish  the  alleged  cause  of  action,  whether  the  cause  or 
action  is  barred  by  the  statutes  of  limitation,  whether  a  party  can  main- 
tain an  action  in  his  own  name  or  is  obliged  to  use  that  of  another, 
whether  a  contract  is  negotiable,  and  whether  it  is  to  be  sued  on  as  a 
specialty  or  as  a  simple  contract,  with  many  other  similar  things,  have 
been  held  to  be  matters  affecting  the  remedy,  and  therefore  to  be  gov- 
erned by  the  law  of  the  forum.  Pearsall  v.  Dwight,  2  Mass.  84  ;  Orr 
V.  Amory,  11  Mass.  25  ;  McClees  v.  Burt,  5  Met.  198  ;  Foss  v.  Nutting, 
14  Grayl  484  ;  Richardson  v.  New  York  Central  Railroad,  98  Mass.  85  ; 
Hoadley  v.  Northern  Transportation  Co.,  115  Mass.  304;  Leach  v. 
Greene,  116  Mass.  534;  Drake  v.  Rice,  130  Mass.  410;  Downer  v. 
Chesebrough,  36  Conn.  39  ;  Leroux  v.  Brown,  12  C.  B.  801  ;  Stoneman 
V.  Erie  Railway,  52  N.  Y.  429. 

It  is  sometimes  difficult  to  decide  whether  the  question  raised  in  a 
given  case  relates  to  the  na.ture  and  validity  of  the  contract  or  to  the 
remedy  upon  it.  We  think  in  the  present  instance  it  relates  to  the 
former,  and  not  to  t5eTattei\~~TEe  defendant  contended  that  under 
ttielaws  of  Vei^ont  his  obligation  growing  out  of  his  indorsements  was 
not  an  absolute  one,  but  depended,  as  between  the  parties,  upon  the 
oral  agreement  or  understanding  between  them,  if  any,  at  the  time 
when  he  placed  his  name  upon  the  notes.  The  defendant  further  con- 
tended that,  when  he  placed  his  name  upon  the  notes,  he  did  so  under 
an  oral  agreement  with  the  plaintiff  bank,  b}-  the  terms  of  which  his  in- 
dorsement was  only  to  be  regarded  as  security  for  the  payment  by  him 
to  the  bank  of  the  money  that  he  might  collect  on  the  mortgage  which 
was  assigned  to  him. 


490  BAXTER  NATIONAL  BANK    V.    TALBOT.  [CHAP.  X. 

Assuming,  as  we  must  for  the  purposes  of  this  case,  that  the  law  of 
Vermont  was  as  stated  by  the  defendant,  the  testimony  offered  by  him 
bore  clearl}-  upon  the  nature  and  validity  of  the  contract  between  him- 
self and  the  bank.  The  defendant  could  not  show  what  the  agreement 
was  in  any  other  way  than  that  in  which  he  offered  to  show  it.  It  was 
not  an  attempt  on  his  part  to  vary  a  written  contract,  because,  under 
the  law  of  Vermont,  the  indorsement  did  not  of  itself  constitute  an 
absolute  contract ;  but,  in  order  to  determine  what  the  contract  was, 
it  was  necessary  to  ascertain  what  agreements  or  undertakings  were 
entered  into  at  the  time,  and  in  connection  with  and  as  part  of  the  in- 
dorsement. If  there  were  none,  then  the  contract  between  the  plaintiff 
and  the  defendant  was  the  usual  contract  growing  out  of  a  blank  in- 
dorsement. If  there  were  such  undertakings  or  agreements,  then  they 
entered  into  and  formed  a  part  of  the  contract  of  indorsement.  The 
evidence  was  rejected,  not  because  it  would  have  been  incompetent  to 
prove  the  facts  which  it  was  offered  to  establish,  had  the  contract  been 
valid  in  this  State,  but  on  the  ground  that  it  related  to  a  matter  affect- 
ing the  remedy.  Back  of  the  question  of  remedv,  however,  lies  the 
question  of  the  contract  itself,  and  we  think  the  evidence  should  have 
been  allowed  as  bearing  upon  that.  See  Powers  v.  Lynch,  3  Mass.  77  ; 
Williams  v.  Wade,  1  Met.  82  ;  Shoe  &  Leather  National  Bank  v.  Wood, 
142  Mass.  563;  Trimbe}' v.  Vignier,  1  Bing.  N.  C.  151  ;  Burrows  v. 
Jemino,  2  Strange,  733  ;  Wattson  v.  Campbell,  38  N.  Y.  153  ;  Dunn  v. 
Welsh,  62  Ga.  241  ;  Forepaugh  v.  Delaware,  Lackawanna,  &  Western 
Railroad,  128  Penn.  St.  217. 

The  plaintiff  objects  that  there  was  no  issue  framed  upon  the  laws  of 
Vermont.  But  the  ruling  of  the  court  rendered  such  an  issue  imma- 
terial ;  besides,  an  issue  could  at  any  time  have  been  framed,  in  the 
discretion  of  the  court,  if  satisfied  that  justice  required  that  it  should 
be  done,  or  the  court  could  hear  and  pass  upon  the  question  itself. 
Atlanta  Mills  v.  Mason,  120  Mass.  244. 

Exceptions  sustained. 


SECT.    III.]  ANDREWS   V.   POND.  491 


ANDREWS   V.   POND. 

Supreme  Court  of  the  United  States.     1839, 

[Reported  13  Peters,  65.] 

Taney,  C.  J.^  This  case  conies  before  the  court  upon  a  writ  of  error, 
directed  to  the  judges  of  the  Circuit  Court  for  the  Ninth  Circuit  and 
Southern  District  of  Alabama. 

The  action  was  brought  b}'  the  plaintiff  as  indorsee,  against  the  de- 
fendants as  indorsers  of  a  bill  of  exchange  in  the  following  words  :  — 

"New  York,  March  11,  1837. 
"Exchange  for  $7287 J^^. 

"  Sixty  days  after  date  of  this  first  of  exchange,  second  of  same 
tenour  and  date  unpaid,  pay  to  Messrs.  Pond,  Converse,  and  Wads- 
worth,  or  order,  seven  thousand  two  hundred  and  eighty-seven  j^^^ 
dollars,  negotiable  and  payable  at  the  Bank  of  Mobile,  value  received, 

which  place  to  the  account  of 

"  Your  obedient  servant 

«'  To  Messrs.  Sayre,  Converse  «fe  Co.,  )  "  D.  Carpenter." 

Mobile,  Alabama."  j 

The  case,  as  presented  by  the  record,  appears  to  be  this.  The  cle- 
fendants  were  merchants,  residing  in  Mobile,  in  the  State  of  Alabama. 
H  M.  Andrpws_&  (Jo.  were  merchaiitS— reaLding:  .iii_-N^a__X£U-k ;  and 
BeloreTEe'above-nientioned  bill  was  drawn,  the  defendants  had  become 
liable  to  H.  M.  Andrews  &  Co.  as  indorsers  upon  a  former  bill  for 
$6,000;  drawn  by  E.  Hendricks  on  Daniel  Carpenter,  of  Montgomery, 
Alabama.  The  last-mentioned  bill  was  dated  at  New  York,  and  fell 
due  on  the  21st  of  February,  1837,  and  was  protested  for  non-payment. 

The  defendant  Pond,  it  seems,  was  in  New  York  in  the  month  of 
March,  1837,  shortly  after  this  protest  ;  when  H.  M.  Andrews  &  Co. 
threatened  to  sue  him  on  the  protested  bill :  and  the  defendant  Pond, 
rather  than  be  sued  in  New  York,  agteed  to  pay  H.  M.  Andrews  &  Co. 
ten  per  cent  damages  on  the  protested  bill,  and  ten  per  cent  interest 
and  exchange  on  a  new  bill  to  be  given,  besides  the  expenses  on  tlie 
protested  bill. 

According  to  this  agreement,  an  account,  which  is  given  in  the  record, 
was  stated  between  them  on  the  11th  of  March,  1837,  in  which  the 
defendants  were  charged  with  the  protested  bill  and  ten  per  cent  dam- 
ages on  the  protest,  and  interest  and  expenses,  which  amounted  alto- 
gether to  the  sum  of  $6,625.25,  and  ten  per  cent  upon  this  sum  was 
then  added,  as  the  difference  of  exchange  between  Mobile  and  New 
York,  which  made  the  sura  of  $7,287.78  ;  for  which  the  defendant  Pond 
delivered  to  H.  M.  Andrews  &  Co.  the  bill  of  exchange  upon  which 

1  Part  of  the  opinion  only  is  given.  —  Ed. 


492  ANDREWS   V.    POND.  [CHAP.  X. 

this  suit  is  brought,  indorsed  by  the  defendants  in  blank.  The  bill  was 
remitted  hy  H.  M.  Andrews  &  Co.  to  S.  Andrews,  at  Mobile,  for  col- 
lection. The  drawees  refused  to  accept  it,  and  it  was  protested  for 
non-acceptance  ;  and  after  this  refusal  and  protest  it  was  transferred 
bv  S.  Andrews  to  J.  J.  Andrews,  tiie  present  plaintiff.  It  is  stated  in 
the  exception,  that  after  this  transfer  it  was  a  cash  credit  in  the  account 
between  H.  M.  Andrews  &  Co.  and  S.  Andrews.  The  bill  was  not 
paid  at  maturity,  and  this  suit  is  brought  to  recover  the  amount. 

There  is  no  question  between  the  parties  as  to  the  principal  or  dam- 
ages of  ten  per  cent  charged  for  the  protested  bill  of  $6,000  ;  nor  as 
to  the  interest  and  expenses  charged  in  the  account  herein  before 
mentioned.  The  defendants  admit  that  the  principal  amount  of  the 
protested  bill,  the  damages  on  the  protest  which  are  given  by  the  act 
of  Assembly  of  New  York,  and  the  interest  and  expenses,  were  properly 
charged  in  the  account.  The  sum  of  $6,625.25  was  therefore  due  from 
them  to  H.  M.  Andrews  &  Co.  on  the  day  of  the  settlement,  payable  in 
New  York.  The  dispute  arises  on  the  item  of  $662.53,  charged  in  the 
account  as  the  difference  of  exchange  between  New  York  and  Mobile, 
and  which  swelled  the  amount  for  which  the  bill  was  given  to  $7,287.78. 
The  defendants  allege  that  the  ten  per  cent  charged  as  exchange  was 
far  above  the  market  price  of  exchange  at  the  time  the  bill  was  given, 
and  that  it  was  intended  as  a  cover  for  usurious  interest  exacted  by  the 
said  H.  M.  Andrews  &  Co.  as  the  price  of  their  forbearance  for  the 
sixty  days  given  to  the  defendants.  This  was  their  defence  in  the  Cir- 
cuit Court,  where  a  verdict  was  found  for  the  defendants  under  the 
directions  given  by  the  court. 

Many  points  appear  to  have  been   raised   at  this  trial,  which  are 
stated  as  follows,  in  the  exception  taken  by  the  plaintiff. 
The  defendant  offered  evidence,  — 

1.  To  prove  that  the  said  bill  of  exchange  was  usmjous,  according 
to_tlie, statute  andjags  of  the_Jiiate  of  New  Ym:k^~The  plain titt'  ob- 
jected  to  the  reading  of  the  statuteaiicJ  depositions  aforesaid^  because 
thFcohtl'act  was  not  made  witli  a"vIewof_the_statute  or  laws  of  New 
VorZ — BTTt  the  bilF  of  "Exchange  was  usury  or  not  by  the  laws  and 
"""statutes  of  Alabama ;  and  that  the  contract  was  subject  only  to  the 
laws  of  the  State  of  Alabama,  as  to  its  obligatory  force  and  validity  ; 
and  he  further  objected,  that  if  this  contract  were  to  be  decided  by 
the  statute  of  New  York,  that  this  proof  could  not  be  given  under 
this  issue  ;  but  the  court  overruled  all  these  objections,  and  permitted 
the  depositions  and  statute  to  be  read,  to  show  the  bill  of  exchange  to 
be  void  by  the  laws  of  New  York  :  to  all  which  plaintiff  excepts.  .  .   . 

Plaintiff  moved  the  court  to  charge  the  jury  that  the  contract  ex- 
pressed in  this  bill  of  exchange,  if  to  be  executed  in  Alabama,  was 
sul)ject  alone  to  the  laws  of  Alabama  against  usury  ;  and  that  the  usury 
laws  of  New  York  had  no  force,  or  anything  to  do  with  this  investiga- 
tion.    This  was  refused  by  the  court,  and  plaintiff  excepts.   .   .   . 

Upon  the  whole  case,  and  the  several  points  stated,  the  court  charged 


SECT.  III.]  ANDREWS   V.   POND.  493 

the  jury  that  ...  if  they  believed  from  the  evidence  that  the  drawers 
of  the  bill  of  exchange  contracted  with  the  drawee  in  the  State  of  New 
York,  at  the  time  the  bill  was  drawn,  for  a  greater  rate  of  interest  than 
seven  per  centum  per  annum,  for  the  forbearance  of  the  paj'ment  of 
the  sum  of  monej-  specified  in  the  bill,  although  it  ma}-  have  been  taken 
in  the  name  of  exchange,  the  contract  is  usurious  ;  and  unless  the}' 
believe  from  the  evidence  that  the  plaintiff  took  the  bill  in  the  regular 
course  of  business,  and  upon  a  fair  and  valuable  consideration  Jo?;a 
fide  paid  by  him,  and  without  notice  of  the  usurj',  they  ought  to  find 
for  the  defendants,  otherwise  for  the  plaintiff.   .  .  . 

Another  ciuestion  presented  by  the  exception,  and  much  discussed 
here,  is,  whether  the  validity  of  this  contract  depends^ji^pon  the  laws  of 
New  York  or  th^se  of  Alabama,.  So  far  as  the  mere  question  of  usury 
IS  concerned  this  question  is  not  very  important.  There  is  no  stipula- 
tion for  interest  apparent  upon  the  paper.  The  ten  per  cent  in  contro- 
vers}'  is  charged  as  the  difference  in  exchange  only,  and  not  for  interest 
and  exchange.  And  if  it  were  otherwise,  the  interest  allowed  in  New 
York  is  seven  per  cent,  and  in  Alabama  eight ;  and  this  small  differ- 
ence of  one  per  cent  per  annum  upon  a  forbearance  of  sixty  days  could 
not  materiall}'  affect  the  rate  of  exchange,  and  could  hard!}'  have  any 
influence  on  the  inquiry  to  be  made  by  the  jury.  But  there  are  other 
considerations  which  make  it  necessary  to  decide  this  question.  The 
laws  of  New  York  make  void  the  instrument  when  tainted  with  usury; 
and  if  this  bill  is  to  be  governed  b}'  the  laws  of  New  York,  and  if  the 
jury  should  find  that  it  was  given  upon  a  usurious  consideration,  the 
plaintiff  would  not  be  entitled  to  recover,  unless  he  was  a  bona  fide 
holder,  without  notice,  and  had  given  for  it  a  valuable  consideration ; 
while  by  the  laws  of  Alabama  he  would  be  entitled  to  recover  the  prin- 
cipal amount  of  the  debt,  without  an}'  interest. 

The  general  pnnciple  in  relation  to  contracts  made  in  one  place  to  be 
executed  in  another,  is  wellsettled.  TEey  are  to  be  governed  by  the 
law  of  the  place  of  performance,  and  if  the  interest  .nllowed  by  the  laws 
\Mthe  place  of  performamie  is  higher  thnn  t.hnt,  pprrpltted  at  the  place 
^of  the  contract  tliP  pnrti'pg  mny  stipulate  for  tlie  higher  interest  without 
incurpJBg.  tb.e  i)enn]fips  of  usury.—  And  in  the  case  before  us,  if  the 
defendants  had  given  their  note  to  H.  M.  Andrews  &  Co.  for  the  debt 
then  due  to  them,  payable  at  Mobile,  in  sixty  days,  with  eight  per  cent 
interest,  such  a  contract  would  undoubtedly  have  been  valid,  and  would 
have  been  no  violation  of  the  laws  of  New  York,  although  the  lawful 
interest  in  that  State  is  only  seven  per  cent.  And  if  in  the  account 
adjusted  at  the  time  this  bill  of  exchange  was  given  it  had  appeared 
that  Alabama  Interest  of  eight  per  cent  was  taken  for  the  forbearance 
of  sixty  days  given  by  the  contract,  and  the  transaction  was  in  other 
respects  free  from  usury,  such  a  reservation  of  interest  would  have 
been  valid  and  obligatory  upon  the  defendants,  and  would  have  been 
no  violation  of  the  laws  of  New  York. 

But  that  is  not  the  question  which  we  are  now  called  on  to  decide. 


494  andi;ews  v.  pond.  [chap.  x. 

The  defendants  allege  that  the  contract  was  not  made  with  reference 
to  the  laws  of  either  State,  and  was  not  intended  to  conform  to  either. 
That  a  rate  of  interest  forbidden  by  the  laws  of  New  York,  where  the 
contract  was  made,  was  reserved  on  the  debt  actually  due,  and  that  it 
was  concealed  under  the  name  of  exchange,  in  order  to  evade  the  law. 
Now  if  this  defence  is  true,  and  shall  be  so  found  b}-  the  jury,  the 
question  is  not  which  law  is  to  govern  in  executing  the  contract,  but 
which  is  to  decide  the  fate  of  a  security  taken  upon  an  usurious  agree- 
ment, which  neither  will  execute?  UnquestionabU',  it  must  be  the  law 
of  the  State  where  the  agreement  was  made,  and  the  instrument  taken 
to  secure  its  performance.  A  contract  of  this  kind  cannot  stand  on  the 
same  principles  with  a  bona  Jide  agreement  made  in  one  place  to  be 
executed  in  another.  In  the  last-mentioned  cases  the  agreements  were 
permitted  by  the  lex  loci  contractus,  and  will  even  be  enforced  there, 
if  the  party  is  found  within  its  jurisdiction,  ,'  But  the  same  rule  cannot 
be  applied  to  contracts  forbidden  by  its  laws  and  designed  to  evade 
them.  /  In  such  cases  tlie  legal  consequences  of  such  an  agreement 
must  be  decided  b\-  the  law  of  the  place  where  the  contract  was  made. 
If  void  there,  it  is  void  every  where  ;  and  the  cases  referred  to  in  Story's 
Conflict  of  Laws,  203,  fully  establish  this  doctrine. 

In  the  case  of  De  Wolfe  v.  Johnson,  10  Wheat.  383,  this  court  held 

that  the  lex  loci  contractus  must  govern  in  a  question  of  usury,  although 

by  the  terms  of  the  agreement  the  debt  was  to  be  secured  by  a  mortgage 

on  real  propert}-  in  another  State.      And  the  case  of  Dewar  v.  Shaw, 

3  T.  R.  425,  shows  with  what  strictness  the  English  courts  apply  their 

own  laws  against  usury  to  contracts  made  in  P^ngland.     In^he  case 

,mider_consideration,  the  previous  debt  for  which  ^^^f^  ^^ill  wnc  npgotjgj^^od 

was,iiii£L-La-Now  Y€>rtes--a_I3ML&f  it,  thatis  to  soy,  th<^  d-'i'"-''gps  Qu  the 

^_pi:Qtest_of_the  first  bill,  were  giveiTB^'  aTIaw  of  that  State,  and  the xlebt 

jYis  thfn  hpnn'ng'  ^^hn  IMnw  Yni-k  interest  of  seven  per  cent,  as  appear4, 

\'\  ^h^  flr^*"*""!!  Ilpfnrit  rftfgri-pfl  to.     And,  if  in  consideration  of  further 

indul<ronce  in  the  time  of  payment.  X]\(\  pnrtipg  sfipiilnted  for  a  higher 

interest,  nnd  ^^ropc\  \o_  conceal  it  under  the  name  of  exchange,  th( 


validity  of  the  instrument,  which  was  executed  to  carry  this  a"greemcnt 
~nnto  cttect,  musTbe  determined  by  the  laws  nCJVew  York,  and  not  by , 
thejaws  of  Alahjun^. 

In  this  aspect  of  the  case  another  question  arose  in  the  trial  in  tlie 
Circuit  Court.  By  the  laws  of  New  York,  as  the}'  then  stood,  usury 
was  no  defence  against  the  holder  of  a  note  or  bill  who  had  received  it 
in  good  faith,  and  to  whom  it  was  transferred  for  a  valuable  considera- 
tion and  witliout  notice  of  the  usur^'.  Tlie  present  plaintiff  claims  the 
benefit  of  this  {irovision  ;  but  upon  the  evidence  in  the  case  it  is  ver}' 
clear  that  he  does  not  bring  liimself  within  it.  The  bill  of  exchange 
was  protested  for  non-acceptance  while  it  was  in  the  hands  of  S.  Andrews, 
the  agent  of  H.  M.  Andrews  &  Co.,  to  whom  it  had  been  sent  for  col- 
lection ;  and  this  fact  appeared  on  the  face  of  tlie  bill  at  the  time  it 
was  transferred  to  the  plaintiff.     Now,  a  person  who  takes  a  bill,  which 


SECT.  III.] 


BROWN   V.   NEVITT. 


495 


upon  the  face  of  it  was  dishonored,  cannot  be  allowed  to  claim  the 
privileges  which  belong  to  a  bona  fide  holder  without  notice.  If  he 
chooses  to  receive  it  under  such  circumstances,  he  takes  it  with  all  the 
infirmities  belonging  to  it,  and  is  in  no  better  condition  than  the  person 
from  whom  he  received  it.  There  can  be  no  distinction  in  principle 
between  a  bill  transferred  after  it  is  dishonored  for  non-acceptance, 
and  one  transferred  after  it  is  dishonored  for  non-payment ;  and  this 
is  the  rule  in  the  English  courts,  as  appears  b}-  the  case  of  Crossley 
V.  Ham,  13  East,  498.  Now  it  is  evident  that  no  consideration  passed 
between  Carpenter,  the  drawer  of  the  bill,  and  the  defendants,  who  are 
the  payers  and  indorsers.  The  bill  was  made  and  indorsed  by  the 
defendants  for  the  purpose  of  being  delivered  toH.  M.  Andrews  &  Co., 
in  execution  of  the  agreement  for  further  indulgence.  And  if  that 
agreement  was  usurious,  then  the  bill  in  question  was  tainted  in  its  in- 
ception, and  that  taint  must  continue  upon  it  in  the  hands  of  the  present 
plaintiff.^ 


BROWN  V.  NEVITT. 

High  Court  of  Errors  and  Appeals,  Mississippi.     1854. 

[Reported  27  Mississippi,  801.] 

Handy,  J.'^  This  was  a  bill  filed  in  the  Southern  District  Chancery 
Court  by  James  Brown,  appellant,  against  John  B.  Nevitt,  to  fore- 
close a  mortgage  of  real  and  personal  property,  executed  by  Nevitt  to 

1  By  the  prevailing  doctrine,  where  a  contract  is  made  in  one  iurisdictinn  to  p^y 
moncjjn  ninnthpr,-and  the  contract  is  usurious  by  the  law  of  one  jurisdictinn  am]  cmnd- 
bv  that  oTthp  other,  the  parties  are  said  to  be  permitted  to  choose  the  one  or  the  other 
law  to  (rnvprn  their  nhligatinn,  provided  they  do  SO  bona  fide  :  and  they  are  presume^ 
t/^^Wvo  f^liQcpp  <-linf  law  wViipb  sustains  thp.  rnntrarf,^  Junction  R.  R.  v.  Ashland  Bank, 
12  Wall.  226 ;  Andruss  v.  People's  B.  &  L.  Assoc,  94  Fed.  57.5  ;  Dygert  v.  Vermont 
L.  &  T.  Co.,  94  Fed.  913  ;  Pancoast  v.  Travelers'  Ins.  Co.,  79  Ind.  173  (cf.  Smith  v. 
Muncie  Nat.  Bank,  29  Ind.  158);  Brown  v.  Freelaud,  34  Miss.  181  ;  Coad  v.  Home 
Cattle  Co.,  32  Neb.  761,  49  N.  W.  757  ;  Townsend  v.  Riley,  46  N.  H.  300;  U.  S.  S.  & 
L.  Co.  V.  Shain,  8  N.  D.  136,  77  N.  W.  1006;  Thorutou  v.  Dean,  19  S  C.  583;  Sharp 
V.  Davis,  7  Baxt.  607  ;  Fisher  v.  Otis,  3  Chaud.  83.  If,  however,  thejjlacejjfjjflrjoaa; 
ariPR js  nnt  hnna  Hde  agreed  npnn,  hut  is  namiid  aa  n,  mPana-^l£-&ya4iag -tllfiJlsUf-V-Iaffia 
of  the  p]f^';;p  "f  pnTitraptino',  thexontract  is  usurioo^.  Nat.  Mut.  B.  &  L.  Assoc,  v.  Burch 
(Mich.),  82  N.  W.  837  ;  Meroney  v.  Atlanta  N.  B.  &  L.  Assoc,  112  N.  C.  842,  17  S.  E. 
637.     See  McAUister  v.  Smith,  17  111.  328. 

In  some  jurisdictions,  however,  greater  stress  is  laid  on_t.Ua-  Inw  of  the,  piftre  of 
perfo"rmance  ;  and  a  contract  good  by  the  law  of  the  place  of  contracting  but  voiiJ 
Ky't.hat_nf  the  place  of  performance  is  held  invalid,  unless  the  parties  are  sliowu  to. 
have  intended  otherwise.  .lackson  v.  Amer.  Mtg.  Co  ,  8S  Lk\.  756,  15  S.  E.  812  ;  Odora 
c.  N.  E.  Mtg.  Sec.  Co.,  91  Ga.  505,  18  S.  E.  131  ;  Underwood  v.  Amer.  Mtg.  Co.,  97 
Ga.  238,  24  S.  E.  847 ;  Dickinson  v.  Edwards,  77  N.  Y.  578.  (See  Sheldon  v.  Haxtun, 
91  N.  Y.  124).  — Ed. 

2  Part  of  the  opinion  only  is  given.  —  Ed. 


^r 


496  BROWN   V.    NEVITT.  [ClIAP.  X. 

Brown,  to  secure  a  debt  amounting  to  832,500,  and  interest,  consist- 
ing of  several  notes  made  by  Nevitt  to  Brown,  one  for  the  sum  of 
$4,833.33^,  two  for  the  sum  of  $10,833.33;^-  each,  all  l)earing  interest 
at  the  rate  of  eight  per  centum  per  annum  from  their  date,  also  two 
drafts  drawn  hy  Nevitt  on  Samuel  Nicholson,  agent  for  Brown,  amount- 
ing to  the  sum  of  $6,000,  all  bearing  the  same  date  of  the  mortgage, 
and  being  payable  at  future  daj^s.  The  bill  states  that  the  lirst  note 
and  the  two  drafts  had  been  paid,  and  claims  that  there  was  due  on 
the  two  notes  for  $10,833.33^-,  a  balance  of  principal  and  interest  of 
about  $23,879.60,  and  seeks  a  foreclosure. 

The  answer  of  Nevitt  denies  his  indebtedness  to  the  amount  claimed 
in  the  bill,  and  alleges  that  the  contract  sought  to  be  enforced  against 
him  is  usurious,  unlawful,  and  against  the  form  of  the  statute  in  such  case 
made  and  provided,  and  was  made  under  the  following  circumstances: 
That  Nevitt  agreed  with  Nicholson,  agent  of  Brown,  that  Brown  should 
lend  and  advance  to  him  the  sum  of  832,500,  on  a  credit  of  one,  two, 
and  three  jears,  in  equal  annual  instalments,  to  be  secured  b}-  mort- 
gage and  to  bear  interest  at  the  rate  of  eight  per  cent  per  annum  from 
the  date  of  the  transaction  ;Vthat  $10,000  of  this  amount  was  to  be  ad- 
vanced b}'  Brown,  b}'  causing  a  credit  for  that  sum  to  be  entered  for 
Nevitt  on  the  books  of  the  Planters'  Bank  at  Natchez,  and  the  sum  of 
SI 6, 500  of  the  money  advanced  was  to  be  by  a  credit  to  that  amount  to 
be  entered  for  Nevitt  on  the  books  of  the  Commercial  Bank  of  Rodney ; 
and  the  residue  of  said  amount,  $6,000,  was  to  be  advanced  in  cash  to 
Nevitt  on  the  1st  of  January  thereafter ;  that  the  credits  were  accord- 
ingly given  on  tlie  books  of  the  banks,  and  the  sum  of  S6,000  was  paid 
in  cash,  but  that  although  the  credits  received  on  the  books  of  the 
banks  were  at  their  nominal  amounts,  they  were,  at  the  time  they  were 
received,  at  a  depreciation  of  twenty  or  twenty-five  per  cent  below  law- 
ful money  ;\that  the  notes  and  mortgage  were  executed  for  the  credits 
so  given,  in  part  as  for  a  loan  and  advance  of  so  much  money  by  Brown 
to  Nevitt,  and  with  the  intention  to  require  a  greater  rate  of  interest 
than  was  allovved  by  our  laws.  ...  It  is  insisted  in  behalf  of  tlie  ap- 
pellant, that  as  these  notes  were  made  payable  in  Louisiana,  they  are 
to  be  governed  by  the  law  of  that  State;  and  as  it  is  not  shown  that 
the  contract  was  usurious  by  the  law  of  that  State,  that  it  cannot  be 
held  to  be  usurious  under  our  laws.  This  argument  would  have  much 
force  if  the  objection  to  this  transaction  was  merely  that  a  rate  of  in- 
terest not  permitted  by  our  laws,  but  allowable  by  the  laws  of  Louisi- 
ana, was  claimed  or  charged  bona  fide.,  and  not  with  the  view  of  evading 
our  laws  upon  tlie  subject ;  for  in  such  a  case,  the  law  of  the  place  of 
performance  of  the  contract  would  govern  it.  But  a  much  more  seri- 
ousj)biection_is_ruised  t£Ltliis-££Ln tract.  The  usury  is  alleged  to  consist, 
not  in  tifce  stipulation  for  a  rate  of  interest  upon  a  legal  loan  not  allowed 
by  our  laws,  though  legal  in  the  State  of  Louisiana,  but  in  loaning  or 
selling  depreciated  bank  securities  as  if  they  were  worth  their  nominal 
value,  by  means  of  which  an  illegal  rate  of  interest  and  a  usurious 


SECT,  III.]  AKEKS   V.   DEMOND.  497 

profit  upon  the  real  value  loaned  or  sold  would  be  realized.  _The_objec-__ 
tion  is,  that  the  consideration  of  the  contract  is  illegal,  because  the 
appeJlant  thereby  reserved,  as  a  component 'parFof  IheL-principal  su in 
intended  to  be  sf^cnred,  a  usurious  rate  of  interest_JlipQn  the  sum  ad-_ 
vanced,  this  bpino-  inhpront  in  the  transaction^  and  necessarily  governed 
by  the  laws  of  this  State,  where  it  was  actually  done/~T?uch  a  tnills- 
action  is  held  to  be  prohibited  bj-  our  laws,  as  is  above  shown  ;  and  it 
cannot  stand  on  the  same  principles  with  a  bona  fide  agreement  made 
in  one  place,  to  be  executed  in  another.  We  canjirit  rocofrniBO  tho  In^vs 
of  Louisiana  as  rendering  valid  a_contract  made_jiere_and_SQUght_J^ 
be  enforced  here,  which  is  prohibited  by  our  laws^^The  rule  in  such 
cases  is,  that  the  agreement  must  stand  or  fall  by  the  law  of  the  place 
where  it  was  made.  Andrews  v.  Pond  et  al.^  13  Pet.  65  ;  Story,  Confl. 
Laws,  203. 

CHere  the  defendant  alleges  that  a  usurious  interest  and  profit  were 
intended  to  be  secured  to  the  appellant,  by  means  of  the  advance  of 
bank  credits  to  the  amount  of  $26,500,  as  at  par,  when  they  were  at  a 
depreciation  of  from  twenty  to  thirty  per  cent,  retaining  upon  the  nom- 
inal amount  interest  at  the  rate  of  eight  per  cent  per  annum  from  the 
date.  V  And  these  allegations  are  sustained  by  the  evidence.  It  is  shown 
that  the  appellant's  agent,  who  conducted  the  negotiation,  was  well 
aware  of  the  depreciation  of  the  bank  funds,  and  of  Nevitt's  great 
desire  to  procure  them  ;  that  he  would  not  transfer  the  sterling  bonds, 
which  were  somewhat  more  valuable  than  the  general  bank  credits,  and 
were  the  kind  of  funds  which  he  knew  that  Nevitt  especiall}-  desired  to 
purchase,  and  that  he  insisted  that  the  bank  credits  should  be  received 
by  Nevitt  at  par ;  that  all  the  efforts  of  Nevitt  to  obtain  the  funds  and 
advances  on  better  terms  were  unavailing ;  that  he  had  to  come  to 
Nicholson's  terms,  take  a  smaller  advance  of  acceptances  than  he 
desired,  take  the  bank  debt  at  par,  and  pa}'  interest  at  the  rate  of 
eight  per  cent  upon  the  whole  amount.  These  circumstances  show 
that  bj-  the  giving  time  of  payment  on  the  notes  of  Nevitt,  an  interest 
and  profit  were  intended  to  be  secured,  contrar}'  to  the  law  of  this 
State,  and  which  cannot  be  carried  into  execution  by  our  courts. 


AKERS   V.   DEMOND. 
Supreme  Judicial  Court  of  Massachusetts.     1869. 

[Reported  103  Massachuseits,  318.] 

Wells,  J.^  The  defence  to  this  suit  is,  that  the  bills  of  exchange 
are  void  for  usury,  under  the  laws  of  New  York,  where  they  were  first 
negotiated.     The  statute  of  New  York,  Eev.  Sts.  part  2,  c.  4.  tit.  3,  §  5, 

1  Part  of  the  opinion  only  is  given.  —  Eq. 
32 


498  AKERS    V.    DEMOND.  [CHAP.  X. 

declares  such  securities  void  "  whereupon  or  whereby  there  shall  be 
reserved  or  taken  or  secured,  or  agreed  to  be  reserved  or  taken,"  a 
greater  rate  of  interest  than  seven  per  cent.  The  Superior  Court  ruled 
that,  upon  the  testimony  offered,  no  defence  was  established,  and 
instructed  the  jur^'  to  return  a  verdict  for  the  plaintiffs.   .   .  . 

The  testimon}'  .  .  .  tends  to  prove  that  the  bills  in  suit  were  drawn 
by  Reed  and  indorsed  by  William  H.  Russell,  the  payee,  in  New  York, 
and  accepted  by  the  defendant  in  Boston,  being  upon  their  face  ad- 
dressed to  him  there.  Both  the  acceptance  and  the  indorsement  were 
for  the  accommodation  of  Reed.  The  possession  of  collateral  security, 
whether  subsequent  or  at  the  time,  does  not  change  the  character  of 
the  acceptance  or  the  relations  of  the  parties.  Dowe  v.  Schutt,  2  Denio, 
621,  After  the  return  of  the  acceptances  to  Reed,  by  an  arrangement 
between  him  and  the  nominal  payee,  tlie  latter  procured  the  bills  to  be 
discounted  b}'  the  plaintiffs,  at  the  rate  of  one  and  a  half  per  cent  a 
month.  The  proceeds  of  one  of  the  bills  were  retained  by  William  H, 
Russell,  the  payee,  as  a  loan  from  Reed,  and  the  proceeds  of  the  other 
handed  over  bv  him  to  Reed. 

As  the  case  is  now  presented,  in  the  absence  of  controlling  testimony 
on  the  part  of  the  plaintiffs,  the  foregoing  statement  must  be  taken  as 
the  result  of  the  evidence.  It  shows  tliat  the  transaction  by  which  the 
plaintiffs  became  holders  of  the  bills  was  the  original  negotiation  of  the 
paper ;  a  loan  upon  discount,  and  not  a  mere  sale  of  the  bills.  The\' 
are  therefore  open  to  the  defence  of  usury.  This  is  so  clearl}'  shown 
to  be  the  law  of  New  York,  by  the  decisions  of  the  courts  of  that  State 
referred  to  in  Ayer  v.  Tilden,  15  Gray,  178,  as  to  require  no  further 
citations. 

Tlie  defendant  is  entitled  to  set  up  tlie  usury,  although  not  paid  by 
himself,  and  althougli  the  loan  was  not  made  to  liim  nor  on  his  account. 
Van  Schaack  v.  Stafford,  12  Pick.  565  ;  Dunscomb  v.  Bunker,  2  Met.  8  ; 
Cook  V.  Litchfield,  5  Seld.  279  ;  Clark  v.  Sisson,  22  N.  Y.  312. 

The  difficuU  question  in  the  case  arises  from  the  fact  that  the  paper 
was  made  payable  in  Boston.  It  is  contended  that  the  contract  of  the 
acceptor  is  to  be  governed  by  the  laws  of  the  place  where  the  bills  are 
made  payable.  The_g£i;eral  principle  is.  that  the  Law_of  the^plaoe  of 
performance  is  the  law  ofUie^SCmtraet. — TlttSTTTtelipplies  to  the  opera- 
tionand  effecFoTThc  corrtraet,  and  to  the  rights  and  obligations  of  ITie. 
'parties  under  it.  But  the  question  of  its  validity,  as  affected  by  the 
legality  of  the  consirloration,  or  of  the  transaction  upon  which  it  is 
"Tounded*-  and^  in  ""wbich  ft  took  its  inception  as  a  contract,  must  be  de- 
termined by  the  law^otthe  -State  wl^eye^that  transaction  was  had.  _No 
other  law  con  ap[)ly  to  it.  ~  tJmnH-vm  ft  loan  effected  elsewhere,  is  no 
offence  against  the  laws  of  Massachusetts.  In  a  suit  upon  a  contract 
founded  on  such  a  loan,  the  penalty  for  usury  could  not  be  set  up  in 
defence,  under  the  statutes  formerly  in  force  in  this  Commonwealth. 
Neither  can  a  penalty,  as  a  partial  defence,  authorized  by  the  laws  of 
one  State,  be  applied  or  made  etFective  in  the  courts  of  another  State. 


SECT.  III.]  AKERS   V.   DEMOND.  499 

Gale  V.  Eastman,  7  Met.  14.  Such  penal  laws  can  be  administered 
only  in  the  State  where  they  exist.  But  when  a  usurious  or  other 
illegal  consideration  is  declared  by  the  laws  of  any  State  to  be  incap- 
able of  sustaining  any  vaUd  contract,  and  all  contracts  arising  there- 
from are  declared  void,  such  contracts  are  not  only  void  in  that  State, 
but  void  in  every  State  and  everywhere.  They  never  acquire  a  legal 
existence.  Contracts  founded  on  usurious  transactions  in  the  State  of 
New  York  are  of  this  character.  Van  Schaacli  v.  Stafford,  12  Picli, 
565  ;  Dunscomb  v.  Bunker,  2  Met.  8.  |  The  fact  that  the  bills  now  in 
suit  were  accepted  in  Boston  and  were  payable  there  does  not  exempt 
them  from  this  operation  of  the  laws  of  New  York.  \  They  were  mere 
"  nude  pacts,"  with  no  legal  validity  or  force  as  contracts,  until  a  con- 
sideration was  paid.  The  only  consideration  ever  paid  was  the  usurious 
loan  made  by  these  plaintiffs  in  New  York.  That  then  was  the  legal 
inception  of  the  alleged  contracts.  Little  v.  Rogers,  1  ]Met.  108  ;  Cook 
V.  Litchfield,  5  Seld.  279  ;  Clark  v.  Sisson,  22  N.  Y.  312  ;  Aeby  v. 
Rapeiye,  1  Hill,  1.  By  the  statutes  of  New  York,  that  transaction  was 
incapable  of  furnishing  a  legal  consideration;  and,  so  far  as  the  bills 
depend  upon  that,  they  are  absolutely  void.  The  original  validity  of 
such  a  contract  must  be  determined  by  the  law  of  the  State  in  which  it 
is  first  negotiated  or  delivered  as  a  contract.  Hanrick  v.  Andrews,  9 
Port.  9  ;  Andrews  v.  Pond,  13  Pet.  65  ;  Miller  v.  Tiffany,  1  Wall.  298 ; 
Lee  V.  Selleck,  33  N.  Y.  615. 

There  is  no  pretence  that  a  discount  of  one  and  a  half  per  cent  a 
month  was  justifiable  by  reason  of  any  added  exchange  between  New 
York  and  Boston  ;  nor  that  it  was  otherwise  than  usurious,  if  any 
amount  of  charge  upon  paper  payable  elsewhere  than  in  New  York 
would  be  usurious  there.  It  has  often  been  held,  in  States  where  re- 
strictions upon  the  rate  of  interest  are  maintained,  that  it  is  not  usury 
to  charge  upon  negotiable  paper  whatever  is  the  lawful  rate  of  interest 
at  the  place  where  the  paper  is  payable,  although  greater  than  the  rate 
allowable  where  the  negotiation  takes  place.  V  But  if  the  paper  is  so 
made  for  the  purpose  of  enabling  the  larger  rate  to  be  taken,  or  the 
greater  rate  is  received  with  intent  to  evade  the  statutes  relating  to 
usury,  and  not  in  good  failh  as  the  legitimate  proceeds  of  the  contract, 
it  is  held  to  be  usury.  So  also,  if  a  greater  rate  is  taken  than  is  allowed 
by  the  law  of  either  State,  it  is  usury.>  Such  a  rate  necessarily  implies 
an  intent  to  disregard  the  statutes  restricting  interest.  Andrews  v. 
Pond,  13  Pet.  65  ;  Miller  v.  Tiffany,  1  Wall.  298.  The  legal  rate  of 
interest  or  discount  in  Massachusetts  is  six  per  cent  per  annum  ;  and, 
at  the  date  of  the  negotiation  of  these  bills,  a  greater  rate  than  six  per 
cent  was  usurious  and  unlawful. 

It  follows,  from  these  considerations,  that,  upon  the  evidence  as  it 
now  stands  upon  the  part  of  the  defendant,  the  transaction,  upon  which 
alone  the  bills  in  suit  must  depend  for  a  consideration  to  give  them 
validity  as  contracts,  was  illegal,  and  such  as,  under  the  laws  of  New 
York,  renders  them  utterly  void.     No  action,  therefore,  can  be  main- 


500  SCOTT   V.    PERLEE.  [CHAP.  X 

tained  upon  them  in  the  courts  of  Massachusetts,  unless  the  effect  of 
this  evidence  be  in  some  waj^  overcome  or  controlled.  The  verdict  for 
the  plaintiff  must  be  set  aside,  and  a  liew  trial  granted} 


SCOTT  V.   PERLEE. 

Supreme  Court  of  Ohio.     1883. 

[Reported  39  Ohio  State,  63.] 

DoTLE,  J.  The  findings  and  judgment  of  the  court,  where  a  case  is 
tried  without  the  intervention  of  a  jury,  will  not  be  disturbed  b}'  this 
court,  unless  such  findings  and  judgment  are  clearly  against  the  weight 
of  the  evidence.  In  the  present  case,  the  testimony,  bej'ond  what  ap- 
pears upon  the  face  of  the  note,  consists  solel}'  of  that  given  by  the 
two  parties,  Scott  and  Perlee.  Which  of  them  was  to  be  believed, 
was  a  matter  properly  to  be  determined  b}'  the  court  trying  the  case, 
and  if  the  judgment  can  fairly  be  sustained  upon  the  testimony  of 
either,  it  ought  not  to  be  reversed.     Landis  r.  Kell^',  27  Ohio  St.  571. 

The  court  might  well  find  from  this  testimony,  if  the  plaintiff  was 
believed,  that  in  the  summer  of  1870,  the  plaintiff  was  in  Fairbury, 
Illinois,  wliere  the  defendant,  Andrew  J.  Scott,  resided  ;  that  the  latter, 
desiring  mone}-  to  carry  on  some  building  enterprises  in  which  he  was  en- 
gaged, in  Illinois,  applied  to  the  plaintitf,  who  was  his  brother-in-law  and 
visiting  him  at  the  time,  for  a  loan,  agreeing  to  pay  him  therefor  ten  per 
cent  interest ;  that  the_plaintiff  agreed  to  make  the  loan.npon  the  terms 
named,  upon  defendant's  note,  with  Henderson  W.  Scott,  who  lived  in 
Ohio,  as  suretv,  and  that  without  an}'  further  arrangement  Scott  wrote 
the  note  at  Fairbury,  at  which  place  he  dated  and  signed  it ;  that  it 
was  then  sent  to  Ohio  to  the  surety,  who  signed  it  and  delivered  it  to 
the  pa^-ee,  receiving  the  monej'  in  this  State  and  forwarding  it  to  the 
principal,  and  that  the  parties  intended  in  good  faith,  to  contract  with 
reference  to  the  law  of  Illinois,  as  to  the  rate  of  interest  to  be  paid  for 
the  use  of  the  mone\-. 

The  question  presented  for  our  consideration  therefore  is,  whether  such 
a  contract,  thus  made,  is  usurious?  That  this  contract  was  executed 
in  Ohio  may  be  conceded  ;  although  signed  in  Illinois  by  the  principal 
debtor  and  there  dated,  it  was  delivered  in  Ohio  and  was  not  a  com- 
pleted contract  until  delivery.     The  fact  that  the  loan  was  negotiated 

^  In  several  jurisdictions  a  note  invalid  for  usury  where  made  is  void,  without  regard 
to  the  law  of  the  place  of  payment.  Falls  r.  Savings  Co.,  97  Ala.  417  ;  Astor  r.  Trice, 
7  Mart.  n.  s.  408  ;  Atwater  v.  Walker,  16  N.  J.  Eq.  42;  Maynard  v.  Hall,  92  Wis.  .565, 
66  N.  W.  71.5. 

In  most  jurisdictions  a  contract  pood  where  made  will  not  be  affected  hv  the  usury 
laws  of  the  place  of  payment.  Sturdivant  v.  Bank,  60  Fed.  7.30;  Amer.  F'reehold  M. 
Co.  V.  Sewell,  92  Ala.  163 ;  Fine  v.  Smith,  II  Gray,  38;  Fcssenden  v.  Taft,  65  N.  iL 
39,  17  Atl.  713.  — Ed. 


SECT,  III.J  SCOTT   V.    PERLEE.  501 

for  in  Illinois  in  accordance  with  the  written  terras  of  the  note,  is  not 
insignificant,  however,  in  determining  the  intention  of  the  parties  to 
contract  with  reference  to  Illinois  law.  Findlay  v.  Hall,  12  Ohio  St. 
612.  It  is  then,  the  case  of  a  citizen  of  Illinois  executing  his  note  in 
Ohio,  in  pursuance  of  an  arrangement  previously  made  in  Illinois,  for 
money  borrowed  to  be  used  in  the  latter  State,  with  an  agreement  to 
pay  interest  according  to  her  laws,  not  intending  or  attempting  thereby 
to  evade  our  usury  laws,  but  in  good  faith.  Is  such  a  contract  tainted 
with  usury? 

Since  the  cases  of  Findlay  v.  Hall,  12  Ohio  St.  610,  and  Kilgore  v. 
Dempsey,  25  Ohio  St.  413,  it  is  undoubtedly  the  law  of  this  State,  and 
indeed  it  is  now  well  established  almost  universally,  that  where  a  con- 
tract is  entered  into  in  one  State,  to  be  performed  in  another,  between 
citizens  of  each,  and  the  rate  of  interest  is  different  in  the  two,  the 
parties  may,  in  good  faith,  stipulate  for  the  rate  of  either,  and  thus 
expressly  determine  with  reference  to  the  law  of  which  place  that  part 
of  the  contract  shall  be  decided.  Where  such  a  contract,  in  express 
terms,  provides  for  a  rate  of  interest  lawful  in  one  but  unlawful  in  fhp. 
nthpr^Stfltp,  t.hp.  parties  will  be  presumed  to  contract  wijli  referenrfi-to 
the  laws  of  the  State  where  the  stipulated  rate  is  lawful^  nnd  sncb-pwv 
gpmpIlon_will  prevail  until  overcome  by  pr"^f  that  thp  stipnlaJion  wns 
a  shift  to  impart  validity  to  a  contract  for  a  rate  of  intaj-e.st.  in,  fnct 
usurious.  Fisher  v.  Otis,  3  Chandler,  102  ;  Butters  v.  Old,  11  Iowa,  1  ; 
Arnold  v.  Potter,  22  Iowa,  198;  Newman  r.  Kershaw,  10  Wis.  340; 
Horsford  v.  Nichols,  1  Paige,  Ch.  225  ;  Townsend  v.  Riley,  46  N.  H. 
300;  Depau  v.  Humphreys,  20  Mart.  (La.)  1;  Fanning  v.  Consequa, 
17  Johns.  511  ;  Pratt  v.  Adams,  7  Paige,  615  ;  Chapman  v.  Robertson, 
6  Paige,  627  ;  Richards  r.  Globe  Bank,  12  Wis.  696. 

If  the  parties  to  the  note  in  question  had  expressly  stipulated  in  the 
note  that  it  was  payable  in  Illinois,  the  contract  to  pa}'  ten  per  cent 
interest  would  be  perfectly  valid,  although  the  note  was  executed  in 
Oliio.  Is  it  rendered  invalid  by  reason  of  the  omission  to  make  that 
express  stipulation?  Itjs  not  entirely  settled  by  the  authorities  where 
thisnote^;ag_a  matter  of  interpretation,  is  payable,  there  being  no  place, 
expressly  stipulalgd  ;  but  the~weight_of  a'utliority  an^^the  sounder  reason, 
we  think,  sustain  the  proposition,  that  a  note  dated  and  signed  at  the 
place  of  residence  of  the  debtor,  and  containing  stipulations,  lawfuTunder, 
the  laws  of  sucli  place,  but  forbidden  by  the  law  of  the  residence_of  the, 

r».-oH.tr^r     r.v    wnnra    the    nntP  wna     nninplptorl     hv    f TplivPVV^ n n H     rwo    O^IPr 

pTacC  of  payment  ItT'hHUKJd,  will  b(j  IJI^'^Unied'Tcrbemvab^e  (\t  the 
former  place,  assuming  of  course  that  no  attempted  evasion  of  the 
"usury  law  of  the  latter  is  proved.  In  other  words,  in  the  absence  of 
any  proof  the  presumption  of  law  is  that  the  note  in  (juestion  is  an 
Illinois  contract,  and  is  vaUd  both  as  to  principal  and  interest.  To 
overcome  this  presumption  the  actual  facts  may  be  shown.  It  is  shown 
that  tlie  contract  was  delivered  in  Ohio ;  but,  taken  in  connection  with 
the  other  facts  proved,  that  does  not  overcome  the  presumption  that  it 


502  SCOTT   V.   PEELEE.  [CHAP.  X. 

is  pajable  in  Illinois,  where  the  debtor  resides,  where  he  dated  and 
signed  his  contract,  and  where  alone  it  is  legal  according  to  all  of  its 
terms.  2  Pai'sons  on  Contracts,  584,  and  cases  cited ;  Daniels'  Neg. 
Inst.  §  90;  Arnold  v.  Potter,  22  Iowa,  198  ;  Tillottson  v.  Tillottson,  34 
Conn.  336;  Jewell  v.  Wright,  30  N.  Y.  264.  Where  such  express 
stipulation  would  uphold  the  contract,  if  the  same  thing  can  fairly  be 
inferred  from  what  is  stipulated,  it  will  likewise  be  upheld. 

But,  while  we  believe  that  this  contract  can  be  thus  sustained,  it  is 
not  necessary  to  place  the  decision  upon  that  ground.  There  is  no 
reason  why  a  citizen  of  Illinois,  or  an}'  other  State,  may  not  come  into 
Ohio  and  borrow  money  to  be  used  in  the  State  of  his  residence,  and  in 
good  faith  contract  with  reference  to  the  laws  of  the  latter  State,  inde- 
pendentl}'  of  where  his  note  is  executed  or  where  it  is  legally'  presumed 
to  be  payable.  In  such  case  the  only  question  is  one  of  good  faith. 
Did  he  honest!}'  contract  with  reference  to  the  law  of  his  allegiance, 
the  law  of  the  State  or  countr}'  where  he  lives  ? 

In  Arnold  v.  Potter,  22  Iowa,  194,  the  note  was  made  by  a  citizen  of 
Iowa,  in  Massachusetts,  payable  in  New  York,  and  the  court  instructed 
the  jury  that  "If  defendant  went  to  Boston  and  urged  the  loan  and 
promised  ten  per  cent  under  the  laws  of  Iowa,  and  all  the  arrangements 
and  contracts  were  made  as  to  the  laws  of  Iowa,  in  good  faith,  then  the 
defence  fails  and  plaintiff  can  recover.  If  the  parties  in  good  faith 
loaned  and  borrowed  the  money  sued  for  with  a  full  understanding  that 
the  law  of  Iowa  was  to  govern  as  to  the  interest,  then  the  laws  of  New 
York  and  IVIassachusetts  can  have  no  influence,  but  the  understanding 
of  the  parties  must  prevail."  The  Supreme  Court  in  affirming  this 
charo-e  say:  "The  form  of  the  transaction  is  nothing,  the  cardinal  in- 
quiry being  when  the  contract  specifying  the  amount  reserved  is  ex- 
press, did  the  parties  resort  to  it  as  a  means  of  disguising  the  usury  in 
violation  of  the  laws  of  the  State  where  the  contract  vvas  made  or  to  be 
executed,  and  in  arriving  at  this  intention  all  of  the  facts  are  to  be 
taken  into  consideration." 

It  is  true  that  in  this  case,  like  Chapman  v.  Robertson,  supra,  se- 
curity was  given  by  mortgage  upon  lands  in  the  State  of  the  debtor's 
residence,  but  the  fact  that  security  is  given  for  a  note  does  not  alter 
the  terms  of  the  note.  But  such  fact  has  significance  in  determining 
what  the  intention  of  the  parties  was,  as  to  the  laws  of  which  State 
their  contract  had  reference,  or  by  which  it  was  to  be  construed.  New- 
man V.  Kershaw,  10  Wis.  341  ;  Fisher  ik  Otis,  3  Chandler,  83;  Ilors- 
ford  V.  Nichols,  1  Paige,  Ch.  225;  2  Kent,  Com.  12  ed.  460,  bottom 
p.  623. Vlt  is  a  fact  of  no  greater  significance  than  is  found  in  this  case, 
where  the  borrower  actuall}'  negotiated  for  tlie  loan  in  the  State  of  his 
residence,  dated  his  note  there,  and  stipulated  for  interest  allowed  by 
her  laws./  See  Ilorsford  v.  Nichols,  snjyra  ;  10  Wis.  340. 

In  a  recent  case,  Kellogg  v.  Miller,  13  Fed.  Rep.  198,  decided  hy 
McCrarv,  C.  J.,  in  the  Circuit  Court  of  Nel)raska,  he  held,  upon  a  state 
of  facts  very  like  those  recited  in  this  case,  except  that  there  was  a 


SECT.  III.]  SCOTT    V.    PERLEE.  503 

mortgage  security,  that  the  contract  was  valid  upon  both  grounds  as- 
sumed in  this  opinion,  first,  because  the  contract  was  to  be  performed  in 
Nebraska,  and  second,  the  ground  we  are  now  considering,  "  A  citizen 
of  one  State  may  loan  money  to  a  citizen  of  another  State,  and  con- 
tract for  the  rate  of  interest  allowed  by  the  laws  of  the  latter  State, 
although  the  legal  rate  of  interest  allowed  is  greater  in  such  State  than 
in  the  State  where  the  contract  is  made,  and  in  which  it  is  to  be  per- 
formed." See  also  Tilden  v.  Blair,  21  Wall.  241,  and  comments 
thereon  of  Folger,  J.,  in  77  N.  Y.  580,  that  the  ruling  consideration  of 
that  case  was  the  intention  of  the  parties,  that  the  draft  should  be 
used  in  Illinois,  as  a  contract  of  that  State,  although  accepted  and 
payable  in  New  York.  Wayne  Co.  Savings  Bk.  v.  Low,  6  Abb.  N.  C. 
76!  95,  affi'd  81  N.  Y.  569  ;  2  Kent,  Com.  12  ed.,  bottom  p.  622-625, 
and  note  ;  Vliet  v.  Camp,  13  Wis.  208.  Indeed  these  cases  are  but 
applications  of  the  rule  as  given  bv  Lord  Mansfield.  '•  The  law  of 
tiio  p^pp  ^-^n  noT-Qv  V.O  iho  rn]p  w|i_ere  the  trnnsnclinn  i^  cntoi-od  into 
with  an  express  view  to  th^  h^^  r,f  nnnthpr  nountry,  as  tlie  rule  1^' 
which  it  is  to  be  tyovernedJ'  Robinson  r.  Bland,  2  Burr.  1078.  The 
place  of  making  the  contract  is  not  to  be  so  exclusively  regarded,  but 
that  when  the  contracting  parties  had  reference  to  another  place  that 
may  be  regarded  ;  that  is,  the  intention  of  the  parties  shall  govern 
when  it  is  made  manifest.  Fisher  v.  Otis,  supra.  That  the  parties 
here  entered  into  this  contract  in  good  faith  with  reference  to  the  laws 
of  Illinois,  there  can  be  no  doubt.  The  law  of  Ohio  never  entered  into 
the  transaction  so  far  as  the  intention  of  the  parties  can  be  ascertained. 
There  was  no  intention  to  make  an  illegal  contract ;  and  to  hold  it 
illegal,  we  must  be  able  to  say  that  the  mere  fact  that  Scott  forwarded 
this  note  to  his  surety  for  his  signature,  and  that  it  was  signed  and  de- 
livered by  the  surety  in  Ohio,  and  the  money  there  paid  (more  than 
probably  as  a  mere  matter  of  convenience),  has  the  effect  of  defeating 
the  intention  of  the  parties.  It  is  difficult  to  perceive  upon  what  prin- 
ciple we  should  so  find. 

We  do  not  in  thus  holding  encourage  two  citizens  of  Ohio  to  attempt 
to  contract  here  for  money  to  be  used  here,  and  make  their  notes 
payable  in  another  State ;  nor  in  any  wa}'  relax  the  strictness  of  the 
rules  which  prevent  any  form  of  evasion  of  the  law  against  usury  ;  but 
we  hold  that  it  is  not  repugnant  to  such  law  for  a  person  to  contract 
with  reference  to  the  law  of  his  domicil,  for  money  to  be  used  there, 
where  no  such  evasion  is  sought  or  intended. 

Judgment  affirmed} 

1  Ace.  Dugan  v.  Lewis,  79  Tex.  246,  14  S.  W.  1024.  Contra,  Amer.  Freehold  L. 
&  M.  Co.  V.  .Jefferson,  69  Miss.  770,  12  So.  464  (semble) ;  Central  Trust  Co.  v.  Burton, 
74  Wis.  329,  43  N.  W.  141.  — Ed. 


504  BIGELOW   V.   BURXHAM.  [CHAP,  X. 


BIGELOW   V.   BURNHAM. 
Supreme  Court  of  Iowa.     1891. 

{Reported  83  Iowa,  120.] 

Beck,  C.  J.     The  promissory  note  is  in  tiie  following  language : 

"  Storm  Lake,  Buena  Vista  Co.,  Iowa. 

"For  value  received  I  promise  to  pay  Rufus  Burnham  or  bearer 
eigliteen  hundred  and  fifty -eight  dollars  and  sixty-three  cents,  within  one 
year  from  date,  with  interest  at  seven  per  cent.     May  2,  1885. 

"  ROLLIN    BUENHAM." 

The  answer  of  the  defendant  admits  the  execution  of  the  note  in  suit, 
but  alleges  that  it  was  executed  and  delivei-ed  in  the  State  of  New  York, 
and  that  under  the  laws  of  that  State  it  is  usurious  and  void.  The 
statutes  of  New  York  declare  that  all  notes  and  other  contracts,  provid- 
ing for  the  payment  of  interest  at  a  rate  greater  than  six  per  centum  per 
annum,  shall  be  void.  J^he  evidence  shows  that  the  note  in  suit  was 
signed  in  New  York,  and  delivered  there,  and  that  the  plaintiflT  at  the 
time,  and  both  prior  and  subsequently  thereto,  resided,  and  still  does 
reside,  in  Storm  Lake,  in  this  State,  and  the  payee  of  the  note  resiiied 
in  New  York.  It  is  not  shown  where  the  indebtedness  was  incurred 
for  which  the  note  was  given,  nor  where  the  consideration  therefor 
was  delivered  to  and  received  by  the  plaintiff,  nor  was  there  any  evi- 
dence showing  an  agreement  for  the  payment  of  the  note  at  any  speci- 
fied place.  The  only  facts  upon  which  the  case  was  decided  are  that 
the  note  was  executed  in  New  York,  and  that  the  payee  resided  in  that 
State. 

It  is  a  settled  rule  that  the  law  of  the  place  where  a  contract  or  a 
note  by  its  terms  is  to  be  performed  determines  the  question  of  its 
validity.  Butters  v.  Olds,  11  Iowa,  1  ;  Arnold  v.  Potter,  22  Iowa,  194  ; 
Burrows  v.  Styker,  47  Iowa,  477;  Story  on  Conflict  of  Laws,  §§  242, 
280,  281  ;  Andrews  v.  Pond,  13  Pet.  65  ;  2  Parsons  on  Notes  and  Bills, 
320. 

The  date  and  place  of  execution  of  a  promissory  note,  which  aj> 
pcar  on  its  face,  and  not  by  mere  memorandum  entered  thereon,  raise 
the  presumption  that  it  is  payable  at  that  {)iacc.  The  reason  of  this 
i-ule  is  based  upon  the  fact  that  the  mention  of  the  place  is  always 
intended  to  show  that  the  note  was  executed  there,  just  as  the  entry  of 
the  date  is  intended  to  show  the  day  of  execution.  In  business  afl'airs, 
and  the  general  affairs  of  life,  the  date  of  an  instrument,  and  the  place 
named  in  connection  with  the  date,  are  written  thereon,  in  order  to  show 
the  day  and  place  of  its  execution.  The  law  will  raise  a  presumption  in 
accord  with  this  uniform  custom  of  men  generally.  The  place  named 
in  a  promissorv  note  as  the  place  of  execution  is  usuallv  ♦''^  \}\?^^  "^ 


SECT.  III.]  BIGELOW   V.    BURNIIAM.  505 

residence  or  business  of  the  maker  of  the  paper,  and  is  em>^r>rlipH  in  the. 
no^e  to  sliow  wliere  it  may  be  presented  for  payment.  It  follows  that 
the  law  raises  a  presumption  upon  the  face  of  the  note  of  an  agreement 
that  it  is  payable  at  the  place  indicated  as  the  place  of  its  execution, 
and  permits  it  to  be  enforced  under  the  law  prevailing  there.  1  Parsons 
on  Notes  and  Bills  (1  ed.),  441,  442  ;  Bullard  v.  Thompson,  35  Tex, 
313  ;  Orcutt  v.  Hough,  54  N.  H.  472  ;  Ricketts  v.  Pendleton,  14  Md. 
320. 

It  will  not  do  to  presume  that  the  parties  entered  into  a  contract, 
which  is  void  under  the  laws  of  New  York,  and  that  they  intended  that 
it  should  be  subject  thereto.  Such  presumption  would  charge  them 
with  the  folly  or  the  fraud  of  entering,  with  their  eyes  open,  into  a  void 
contract.  ATpn^^^llJ^^  pi-p^nm^^d  by  tlie  law  to  ant-JH^follv  or  in  dishon- 
esty,  butrather  that  they  intended  in  good  faith  that  their  acts  shall  be 
valTd,  and  what  they  purport  to  bp  Nor  will  we  by  presumption  bring 
the  case  under  the  usury  law  of  New  York,  which  is  penal  in  its  effects. 
Bullard  v.  Thompson,  35  Tex.  313  ;  Thompson  v.  Powles,  2  Sim.  194. 

When  a  contract  is  made  in  one  State,  to  be  performed  in  another, 
and  in  express  terms  provides  for  a  rate  of  interest  lawful  in  one^Jmt 

nnl.ivvfpl    in    thp    otliPr  Stn.t.P,  the    parties  will    be^prrP""^^^    ^^    nnutmct 

with  reference  to  the  laws  of  the  State  wherein  the  stipulated  rate  pf 
interest  is  lawful,  and  such  presumption  will  prevail  until  overcome  by 
^nf  thnt  thfi  sti|)u1ntion  was  intended  as  a  means  to  defeat  the  law 
ooYijI^gt  nonvy  ^pri  to  support  a  coutract  otherwise  usurious.  If  it  be 
a  bona  fide  transaction  the  contract  will  be  sustained  ;  if  f^  cIpy^qq,  for 
spcnnno-  n^ppons  inle''^'^^  ^^  "'i"  bp  hold  invnli^r  Scott  V.  Perlee,  39 
Ohio  St.  63  ;  Newman  u.  Kershaw,  10  "Wis.  333  ;  Fisher  v.  Otis,  3  Chand. 
(Wis.)  83;  Richards  v.  Bank,  12  W^is.  692  ;  Horsford  v.  Nichols,  1  Paige, 
220  ;  Pratt  v.  Adams,  7  Paige,  615  ;  Fanning  v.  Consequa,  17  Johns. 
511;  Townsend  v.  Riley,  46  N.  H.  300  ;  Arnold  v.  Potter,  22  Iowa,  194  ; 
Butters  v.  Olds,  11  Iowa,  1.  See  note  to  Martin  v.  Johnson,  8  Lawyer's 
Rep,  Ann.  170  ;  10  S.  E.  Rep,  1092, 

It  api)ears  that  the  rule  as  to  the  law  of  contracts,  made  in  one  State 
to  be  performed  in  another,  is  modified  or  softened  when  applied  to  con- 
tracts for  interest,  so  that  the  intentions  of  the  parties  are  effectuated, 
as  a  concession  to  trade  and  commerce.  See  Daniels  on  Negotiable 
Instruments,  §  922,  and  cases  cited  ;  2  Parsons  on  Contracts,  §  5,  p.  94, 
and  cases  cited.  Hart  v.  Wills,  52  Iowa,  56,  is  not  in  conflict  with  our 
conclusions  in  this  case,  the  note  in  that  case  being  held  to  be  an  Iowa 
contract  upon  grounds  not  inconsistent  with  our  decision  in  this  case. 

On  .the  ground  that  the  note  upon  its  face  will  be  presumed  to  be 
payable  in  Iowa,  and  in  accord  with  other  doctrines  stated,  we  reach 
the  conclusion  that  the  judgment  of  the  District  Court  ought  to  be 

Heversed. 


506  GALE  V.   EASTMAN.  [CHAP.  X. 

GALE   V.  EASTMAN. 
Supreme  Judicial  Court  of  Massachusetts.     1843. 

[Reported  7  Metcalf,  14.] 

Assumpsit  by  the  payee  against  the  maker  of  a  promissory  note  made 
and  payable  in  New  Hampshire.     The  defence  was  iisury.^ 

Shaw,  C.  J.  By  the  law  of  New  Hampshire,  the  contract,  even 
though  usury  were  taken  or  received  upon  it,  was  not  void ;  it  was  so 
far  legal,  that  an  action  might  be  maintained  and  a  judgment  recovered 
upon  it,  with  certain  deductions.  Act  of  12th  Feb.,  1791.  By  §  2, 
it  is  provided  that  when  usuiy  is  relied  upon,  in  defence,  a  special 
mode  of  trial  may  be  offered  h\  the  defendant ;  that  is,  a  trial  by  oath 
of  the  parties,  as  formerly  practised  under  the  law  of  ^Massachusetts, 
St.  1783,  c.  55,  but  which  mode  of  proof  and  form  of  trial  are  now 
altered  in  this  State.  Bj-  the  law  of  New  Hampshire,  still  in  force,  if 
the  usury  is  thus  proved,  a  certain  amount  shall  be  deducted,  in  as- 
sessing the  damages,  from  the  principal  and  interest  due  on  the  note. 
These  provisions  appl}-  only  to  the  remed}',  and  of  course  can  extend 
only  to  suits  brought  in  New  Hampshire,  and  can  have  no  effect  when 
a  remedy  is  sought  under  our  laws.  The  general  rule  is,  that  those 
provisions  of  law  which  determine  the  construction^ operation,  and 
effect  of  a  contract  are  part  of  the  contract,  and  follow  it,  and  give 
eJTect  to  it, jvherever  it  goes;  but  that  in  regard  to  remedies,  t\\Q  lex 
jfori,  the  law  of  the  plafp  whprp  t.hp  ypppedy  is  sought,  must  govern.  ^ 
We  therefore  cannot  be  governed  by  the  law  of  New  Hampshire,  which 
professes  only  to  regulate  the  remed}'  on  a  usurious  contract. 

The  law  of  Massachusetts,  though  somewhat  analogous,  cannot  ap- 
ph',  because,  although  the  mode  of  enforcing  the  law  against  usury  is 
by  applying  it  to  the  remedy,  3'et  the  law  to  be  enforced  is  the  law  of 
Massachusetts.  The  law  of  this  Commonwealth  declaring  what  shall 
be  the  rate  of  interest,  and  what  contracts  shall  be  deemed  usurious, 
also  directs,  when  suits  are  brought,  what  deductions  shall  be  made  ; 
but  it  is  suits  brought  on  such  contracts,  that  is,  contracts  made  in 
violation  of  its  own  provisions. 

Judgment  for  the  p/aui^i*^'.^ 

1  Tliis  short  statement  is  substituted  for  that  of  the  Keporter.  Arguments  of 
counsel  are  omitted.  —  Ed. 

2  Acr.  Sherman  r.  Gassett,  9  111.  521  ;  Lindsay  v.  Hill,  66  Me.  212;  Collins  Iron 
Co.  v.  Burkam,  10  Mich.  283;  Watri.=is  r.  Pierce,  32  N.  H.  560.  See  Meares  v.  Fin- 
layson,  55  S.  C.  105,  32  S.  E.  986.—  Ed. 


SECT.  IV.]      KNIGHTS    TEMPLARS,    ETC.    AID    ASSOC.    V.   GREENE. 


SECTION    IV.  —  Interpretation. 


507 


KNIGHTS    TEMPLARS,    &c.    ASSOCIATION    v.   GREENE. 
Circuit  Court  of  the  United  States,  S.  D.  Ohio.     1897. 

[Reported  79  Federal  Reporter,  461.] 

Petition  in  the  nature  of  an  interpleader  filed  b\-  the  plaintiff  associ* 
ation  against  the  widow,  mother,  and  brothers  and  sisters  of  John  G. 
Greene,  filed  in  the  Superior  Court  of  Cincinnati,  and  removed  to  this 
court.  The  petition  was  filed  to  determine  who  among  the  defendants 
should  be  paid  the  amount  of  an  insurance  policy  issued  by  the  plaintiff 
association  in  1879  on  the  life  of  John  G.  Greene  for  the  sum  of  So,000. 
He  died  in  1894.  The  plaintiff  association  was  an  Ohio  corporatioQ  ; 
one  of  its  agents  went  to  New -Xork^wherfiXLcaene  then  was  and  always 
remained  domiciled,  and  secured  from  him  an  ajjplication  for  the  policy; 
lie  policy  was  mailed  from  Ohio,  probably:  to  the  company's .  ag.ent_ju 
New  York,  and  was  delivered  to  Greene.  -At_JLhe_time  oLGLcene^ 
death  the^policy  was  payable  '^  to  the  heirs  of  the  said  John  G.  Greene."_^ 

Taft,  CircuItT  Judge. ^  It  is_contended  on  behalf  of  the  widow  of 
John  G.  Greene,  the  insured^^hat  the  word  "heirs"  should  be  cou- 
"^ued  acc6r^tT[g2t5~theTaws  of  Ohio.  If  so,  it  is  conceded  that,  as 
the  insured  left  no~cliTldren,  she  would  take  the  entire  fund,  whether 
the  word  '•  heirs  "  is  to  be  construed  strictly  as  meaning  those  who  at 
his  death  would  inherit  real  estate  from  the  insured,  or  is  to  be  taken 
as  meaning  those  to  whom  personal  property  of  the  insured  would  be 
distributed  if  he  died  intestate.  The  administrator  of  Mary  Greene, 
the  mother  ofthe  insured  (she  having  died  since  the  beginning  of  this^ 
suit)^^jiidtIiel)rot^ers^^  of  tbp.  insured,  p.nntend  that  the  word^ 

"  heirV^jsJo  be  construed  iinrlpr  thp  1n.w  of  New  York,  and  that,  whetlier 
itjs_to  be  intcrpiieted^ t^'-h^i'^^lly  "«  thnge  inheriting  real  estate,  or  only, 
as  n^xt_of  kin,  in  either  onsp,  by  the.  New  York  law,  the  widow^  Sarah 
Tl  fti-PPne.  takes  nothing.  It  is  contended  by  the  association  (which 
has  paid  $1,000  to  the  widow)  and  by  the  widow  that,  even  if  the  New 
York  law  is  to  control  the  meaning  of  ''heirs,"  the  court  must  construe 
the  word  in  accordance  with  that  law  to  mean  those  to  whom  the  pro- 
ceeds of  the  policy  would  have  gone  had  it  been  part  of  his  estate  and 
he  had  died  intestate,  and  in  that  case  by  the  intestate  statutes  of  New 
York  the  widow  would  receive  a  moiety  of  the  proceeds  of  the  policy. 

The  application  was  made  and  delivered  to  the  agent  of  the  company 
in  New" York,  and  the  (;ertificate  or  policy  was  delivered  by  an  agent  o£ 
the  company  in  New  York  to  the  insured.  All  payments  were  made  in 
"H^ew  Yorkbyjhe  insured  to  an  agent  of  the  company,  both  those  ac- 
companying the  original  application  and  all  subsequent  ones.     These . 

1  This  short  statement  of  facts  is  substituted  for  that  of  the  Reporter.  —  Ed. 

2  Part  of  the  opinion  is  omitted.  —  Ed. 


508  KNIGHTS   TEMPLARS,    ETC.   AID   ASSOC.    V.   GREENE-      [CHAP.  X 

circumstances,  under  the  decision  in  Assurance  Soc.  v.  Clements,  140 
U.  S.  226,  11  Sup.  Ct.  822,  might  seem  to  justify  the  conehision  that 
the  contract,  having  been  made  in  New  York,  should  be  construed  b}' 
the  New  York  law,  and  thus  that  the  word  "  heirs,"  within  tlie  intention 
of  the  parties,  should  be  construed  to  be  ''heirs"  as  interpreted  by  the 
New  York  law,  rather  than  as  interpreted  by  that  of  Ohio.  I  do  not 
propose,  however,  to  rest  the  decision  in  this  case  on  its  likeness  to  the 
case  of  Assurance  Soc.  v.  Clements.  There  are  some  additional  circum- 
stances in  this  case  which  ma}',  perhaps,  distinguish  this  case  from  that. 
The  policy  was  to  be  approved  and  issued  in  Ohio.  The  policy  was  to 
be  payable  there.  In  cases  where  both  parties  are  interested  in  the 
construction  of  the  insurance  contracts,  these  circumstances  are  some- 
times regarded  as  important. 

But  I  do  not  think  this  a  case  for  construing  the  terms  of  a  contract 
tr>_rpfl,ch^  the  common  intent  of  two  parties,  and  it  does  not  seem  to  me. . 
that  the  same  rules  apply.  What  we  are  construing  here  is  language 
of  the  insured  designating  the  beneficiary  of  his  bounty  after  his  death. 
By  the  by-laws  of  the  association  he  was  given  power  to  change  this 
designation  at  any  time  before  his  death.  The  association  reserved  no 
right  or  power  to  object  to  any  designation  or  change  of  designation, 
provided  the  beneficiarv  named  was  within  those  classes  of  persons  to 
whom,  b}'  statute,  charter,  and  its  own  by-laws  the  association  was  per- 
mitted to  pay  policies.  Now,  it  must  be  conceded  that,  as  those  classes 
are  limitgd  by  tlie  law  of  Ohio,  the  terms  nsed  tn  dpscribp  tlinm  in  t]\f. 
law  mujt_be  construed  according  ja-the  law  of  the  StntPi^  Therefore 
the  association  had  no  power  to  agree  to  pa}',  policies  to  an}-  person  not 
a  member  of  the  family  of  the  insured  or  not  an  heir  of  the  insured,  as 
"family"  and  "heir"  are  defined  by  the  law  of  Ohio.  Within  these 
classes,  however,  the  association  was  entirely  indifferent  who  the  desig- 
nated beneficiary  might  be.  It  is  conceded  that  eacli  of  the  claimants 
at  the  bar  is  within  the  requirement  of  the  statute  of  Ohio.  Subject_to^ 
tEclimitation  of  the  statute,  the  const niftinn  of  the  lnnorn;|or^  '^f  tili'' 
designation  becomes  solely  a  matter  of  dntprtninincr  tlip  int.pnt  of  tlje 
insurecL  In  other  words,  the  language  is  to  be  treated  as  of  a  testa- 
mentary character,  and  is  to  receive,  as  nearly  as  possible,  the  same 
construction  as  if  used  in  a  will  under  the  same  circumstances.  Bolton 
V.  Bolton.  73  Me.  299  ;  Duvall  v.  Goodson,  79  Ky.  224-228  ;  Mutual 
Ass'n  V.  Mfjoitgomery,  70  Mich.  587,  38  N.  W.  588  ;  Silvers  r.  Associ- 
ation, 94  Mich.  39,  53  N.  W.  935;  Chartrand  v.  Brace,  16  Colo.  19, 
26  Pac.  152  ;  Phillips  v.  Carpenter  (Iowa),  44  N.  W.  898. 

This  designation  was  made  in  New  York,  by  one  domiciled  in  New 
York,  for  distribution  to  his  family,  most  of  whom  lived  in  New  York. 
If  we  were  construing  this  language  as  a  clause  in  a  will,  whether  the 
money  bequeathed  were  payable  in  New  York  or  Ohio,  there  can  be  no 
doubt  that  the  word  "heirs"  would  be  construed  under  the  New  York 
law,  because  that  of  the  domicil  of  the  testator.  Harrison  v.  Nixon, 
0  Pet.  483  ;    Anstruthcr  v.  Chalmer,  2  Sim.   1  ;    Yates  r.  Thompson, 


SECT.  IV.]  KNIGHTS    TEMPLARS,   ETC.    AID   ASSOC.    V.    GREENE.      5 OS 

3  Clark  &  F.  544  ;  Enohin  v.  Wylie,  10  H.  L.  Cas.  1  ;  Wilson's  Trusts 
(Shaw  V.  Gould),  L.  R.  3  H.  L.  55  ;  Paisous  v.  Lyman,  20  N.  Y.  1U3  ; 
Freeman's  Appeal,  68  Pa.  St.  151.  FoUovYino;  this  testnpnpntnrj-  rnlp 
of  coustruetion,^have  little  difficulty  in  fonr-lnrling  thaf,  Grpenp  in- 
tended that  tbelang:ua^e  he  used  stioiild  l)e  mnsb-nprl  by  the  law  (;>( 
New  York.  Indeed,  without  the  aid  of  authorit}-,  I  should  reach  the 
same  decision.  Greene  lived  in  Xew  York,  and  all  the  possible  objects 
of  his  bounty  lived  there.  Is  it  reasonable  to  suppose  that  he  would 
use  language  to  describe  them,  intending  it  to  be  interpreted  by  the 
law  of  some  other  State?  I  cannot  think  so.  Nor  is  there  anything 
in  the  circumstances  of  his  change  of  the  beneficiary  to  lead  to  a  differ- 
ent result.  If  the  correspondence  between  the  insured  and  the  associ- 
ation at  the  time  the  beneficiary  was  changed  is  competent,  it  shows 
that  he  wished  the  proceeds  of  the  policy  to  go  to  his  estate,  for  he  used 
the  words  "heirs,  administrators,  executors,  and  assigns."  To  this  the 
association  responded  that  the  law  of  its  creation  forbade  a  designation 
to  his  "estate,"  but  that  he  might  designate  his  "heirs,"  which  he  did. 
This  shows  that  his  purpose  was  to  leave  it  to  those  to  whom  it  would 
go,  were  it  part  of  his  estate  and  he  were  to  die  intestate,  and  he  used 
the  word  "  heirs  "  as  most  nearly  accomplishing  that  purpose.  Had  he 
been  permitted  to  designate  his  estate  as  the  payee,  certainly  the  pro- 
ceeds of  the  policy  would  have  been  distributed  under  the  New  York 
law.  May  we  not  presume  that,  with  the  same  purpose  in  view,  he 
intended  that  the  designation  he  was  permitted  to  make  should  receive 
a  New  Y'ork  construction?  The  mere  fact  that  he  was  cautioned  that 
the  Ohio  law  did  not  permit  him  to  direct  payment  to  his  estate  does 
not,  it  seems  to  me,  show  that  he  intended  the  words  he  used  to  receive 
an  Ohio  construction.  He  knew  that  the  association  did  business  out- 
side of  the  State  of  Ohio.  He  knew  that,  so  large  was  the  number  of 
New  York  certificate  holders,  the  annual  meeting  of  the  association  was 
held  in  New  York.  Was  it  not  most  natural  for  him  to  think  that,  so 
long  as  he  designated  persons  within  the  limitation  permitted  by  the 
Ohio  law,  the  particular  individuals  named  l)y  him  should  be  determined 
b}'  giving  to  his  language  the  meaning  it  would  have  at  his  home,  where 
the  money  was  ultimateh'  to  come  and  where  the  beneficiaries  lived? 
We  can  be  certain  that  Greene  regarded  the  proceeds  of  this  polic}"  as 
part  of  his  estate  which  he  was  leaving  to  be  distributed  at  his  death  ; 
and  we  may  be  sure  that  he  did  not  distinguish  between  language  used 
in  the  designation  and  that  which  he  would  have  used  in  a  will  concern- 
ing his  personal  estate. 

In  Mayo  v.  Assurance  Soc,  71  ]\riss.  590,  15  South.  791,  it  was  held 
that  the  proceeds  of  a  polic}-  of  life  insurance  issued  in  New  York,  and 
payable  to  the  heirs  of  the  insured,  who  was  domiciled  in  Virginia,  were 
to  be  distributed  under  the  laws  of  the  latter  State.  In  Association  v. 
Jones,  154  Pa.  St.  107,  26  Atl.  255,  an  association  of  Ohio,  organized 
under  exactly  the  same  law  as  the  complainant,  issued  a  policy  payable 
to  the  legal  heirs  of  the  insured,  who  was  domiciled  in  Pennsylvania. 


510  KNIGHTS    TEMPLAKS,   ETC.   AID   ASSOC.    V.    GKEENE.      [CHAP.  X. 

It  was  held  that  the  court  must  determine  who  the  legal  heirs  of  the 
insured  were  by  the  law  of  his  domicil,  to  wit,  Pennsylvania.  The  court 
said  (page  108,  154  Pa.  St.,  and  page  255,  26  Atl.) : 

"This  contract  is  made  with  William  D.  Jones,  of  Philadelphia,  and 
it  fixes  Ills  domicil,  and  promises  to  pa}'  the  fund  to  his  legal  heirs.  His 
domicil  Ijeing  thus  here,  a  promise  to  pa}'  to  his  legal  heirs  must  be  such 
as  are  determined  b}'  the  intestate  laws  of  such  domicil." 

In  Association  v.  Jones,  154  Pii.  St.  99,  26  Atl.  253,  a  policy  was  pay- 
able "to  the  devisees,  or,  if  no  will,  to  tiie  heirs,  of  the  said  William 
Jones."  The  association  was  organized  under  the  laws  of  Illinois.  It 
was  held  that  there  w\is  no  disposition  of  the  proceeds  of  the  policy  hy 
the  will.  It  was  held  that  the  word  "  heirs  "  meant  those  distributees 
to  whom  personal  i)ropcrty  of  tlie  insured  would  go  if  he  died  intestate. 
It  was  contended  that  the  words  should  be  given  effect  according  to 
the  law  of  Illinois,  and  as,  b}'  those  laws,  the  husband's  personal  prop- 
ert}'  would  go  to  the  widow  in  case  of  his  intestacy,  she  was  entitled  to 
the  whole  fund.  The  court  held  that,  as  the  policy  was  issued  to  Jones 
as  a  citizen  of  Pennsylvania,  the  promise  to  pa}-  to  his  heirs  must  be 
treated  as  a  promise  to  pa}'  according  to  the  intestate  law  of  his  domicil, 
and  that  it  was  a  case  for  the  application  of  the  common-law  rule  "  that 
personal  property  has  no  situs,  but  follows  the  person  of  the  owner,  and 
is  distributed  according  to  the  intestate  laws  of  such  owner's  domicil." 

There  are  other  cases  in  which  the  same  result  was  reached,  though 
no  question  seems  to  have  been  raised  on  the  point  by  counsel  or  con- 
sidered by  the  court.  Gauch  v.  Insurance  Co.,  88  111.  251  ;  Britton  v. 
Supreme  Council,  46  N.  J.  Eq.  102,  18  Atl.  675.  It  may  be  noted,  in 
connection  with  the  two  Pennsylvania  cases  just  cited,  that  the  policy 
in  this  case  expressly  insures  the  life  of  John  G.  Greene,  of  Schenectady, 
N.  Y.  I  conclude,  both  on  reason  and  anthorify,  tiint  tho  w/->r>^  "heirs". 
as  used  in  the  certificate  or  policy  in  the  case  at  bar,  is  to  be  construed 
according  to  New  York  law^ 

And  what  does  the  word  "heirs"  mean,  according  to  the  New  Yoi:k 
Tn^y^spd  in  .i-^lim-  of  Ijfo  insurance?  It  is  well  settled  la  many-States 
thnf^;hprp  <Vhpjrs^isjispdj_iri  ft  will  or  other  dponrnpnt  having  a  testar 
mentary  effect,  to  designate  persons  who  are  to  receive  personal  prop- 
eit}-,  it  shall  be  held  to  mean  those  persons  to  whom  the  personalty  of. 
the  giver  would  be  distributed  if  he  were  to  die  intestate,.  Of  course, 
as  already  said,  technically  it  means  those  who  would  inherit  the  giver's 
real  estate  in  case  of  his  intestacy.  But  courts  recognize  that  the  word 
is  given  in  common  parlance  —  xt  loquitur  vuh/us — a  much  wider 
meaning,  and  includes  all  those  who  would  succeed,  under  the  intestate 
laws  of  the  State,  to  the  enjoyment  of  the  property  in  question.  Asso- 
ciation r.  Jones,  supra  ;  McGill's  Appeal,  61  Pa.  St.  46  ;  Eby's  Appeal, 
84  Pa.  St.  241  ;  Sweet  v.  Dutton,  109  Mass.  589 ;  Welsh  v.  Crater,  32 
N.  J.  Eq.  177;  Freeman  v.  Knight,  2  Ired.  Eq.  72:  Croom  r.  Herring, 
4  Hawks,  393;  Corbitt  lu  Ccnbitt,  1  Jones.  Eq.  114;  Henderson  v. 
Henderson,  1  Jones  (N.  C),  221  ;    Alexander  v.  Wallace,  8  Lea,  569; 


SECT.  IV.  ]  BETHELL  V.    BETHELL.  511 

Collier  v.  Collier's  Ex'rs,  3  Ohio  St.  369  ;   Doody  v.  Higgins,  2  Kay  & 
J.  7-29.   ... 

With  this  construction,  we  must  refer  to  the  statute  of  distribution  of 
New  York  to  determine  how  the  money  in  this  case  must  go.     Para 
graph  2,  §  75,  tit.  3,  of  chapter  6  of  the  statutes  of  New  York  on  wilN 
and  decedents'   estates  (4  Rev.  St.   [8th  ed.],   p.  2565)  provides  as 
follows  :  — 

''That  if  the  deceased  leave  no  children  the  widow  shall  take  a  moiety 
of  the  personal  estate.*' 

Paragraph  6  provides  :  — 

"If  the  deceased  shall  leave  no  children  and  no  representatives  of 
them,  and  no  father,  and  shall  leave  a  widow  and  a  mother,  the  moiety 
not  distributed  to  the  widow  shall  be  distributed  in  equal  shares  to  his 
mother,  and  brothers  and  sisters,  or  the  representatives  of  such  brothers 
and  sisters." 

The  decree  of  the  court  must  be,  therefore,  an  order  distributing  the 
proceeds  of  the  policy,  one-half  to  the  widow,  Sarah  L.  Greene,  and 
one-half  to  be  equally  divided  between  the  administrator  of  Mary  Greene, 
the  mother,  and  the  brothers  and  sisters  of  John  L.  Greene,  including, 
as  one  of  the  equally  sharing  distributees,  the  son  of  his  deceased  sister. 
The  widow,  Sarah  L.  Greene,  will,  of  course,  be  charged  with  the  $1,000 
already  paid  her  by  the  complainant.  The  costs  will  be  paid  out  of 
the  fund. 


BETHELL   v.    BETHELL. 

Supreme  Court  of  Indiana.     1876. 

[Reported  54  Indiana,  428.] 


WoRDEN,  C.  J.  Action  by  the  appellee,  against  the  appellant.  The 
complaint  contained  two  paragraphs.  The  first  went  out  on  demurrer. 
A  demurrer  for  want  of  sufficient  facts  was  filed  also  to  the  second, 
but  was  overruled,  and  exception  taken.  Such  further  proceedings 
were  had  as  that  final  judgment  was  rendered  for  the  plaintiff. 

Error  is  assigned  upon  the  overruling  of  the  demurrer  to  the  second 
paragraph  of  the  complaint. 

'JJoe-agcond  paragraph  of  the  complaint  alleges,  that,  on  the  13th  of 
MnA',  1  HR^Tby^^  (teed'or''cgnve.\'artcc  b&tweeTr~tB(r~appellant  and  his 
w_lfe  aa^-ttia.  appellee,  all  of  whom  were  andjhad  been  citizens  of  War- 


512  •  BETHELL    V.    BETHELL.  [CIIAP.  X. 

rick  County,  Indiana,  for  more  than  thirty'  years,  the  appellant  granted, 
bargained,  and  sold  to  the  appellee  certain  lands  in  Missouri,  described 
by  sections,  etc.,  in  consideration  of  four  thousand  eight  hundred 
dollars. 

The  deed  is  copied  into  the  paragraph,  and  contains  the  words 
"  grant,  bargain,  sell,  and  convey,"  and  purports  to  be  upon  a  con- 
sideration of  four  thousand  eight  hundred  dollars. 

The  paragraph  then  avers  that,  b}'  the  law  of  the  State  of  Missouri 
at  said  date,  the  defendant,  bj'  said  deed  of  conveyance,  covenanted  to 
and  with  the  plaintiff  that  he  was  seised  of  an  indefeasible  estate  of 
inheritance  in  fee  simple,  and  that  said  defendant,  by  force  of  said  law, 
might  be  sued  upon  the  same  in  the  same  manner  as  if  said  covenant 
had  been  inserted  in  the  deed. 

The  paragraph  here  sets  out  a  section  of  the  Missouri  statutes,  which 
corresponds  with  these  allegations,  and  proceeds  to  allege,  further,  that 
at  said  date  the  defendant  was  not  seised  of  an  indefeasible  estate  of 
inheritance  in  fee-simple  to  said  real  estate,  but,  on  the  contrar}',  that 
he  had  not  nor  has  he  yet  an}-  title  whatever  to  an\-  part  of  said  lands. 
That  defendant  was  never  at  any  time  in  possession  of  said  lands,  nor 
were  the}'  ever  in  the  possession  of  the  plaintiff;  and  that  while  the 
plaintiff  was  ignorant  of  said  want  of  title,  he  paid  a  large  amount 
of  taxes  on  said  lands,  to  wit,  some  eighteen  months,  after  said 
conveyance. 

The  deed,  as  set  out,  contains  no  covenants  whatever,  either 
express  or  implied.  There  is  no  general  warranty,  as  provided  for 
b\'  our  statute.  The  words  "•  grant,  bargain,  sell,  and  convey  "  do 
not  impl}'  any  covenants  in  a  conve\"ance  in  fee,  though  the  words, 
'•grant"  or  '"denaise"  may  imply  a  covenant  of  title,  in  a  lease  for 
years.  This  proposition  was  decided,  after  an  exhaustive  examination 
of  the  authorities,  in  the  case  of  Frost  v.  Raymond,  2  Caines,  188.  So 
that  if  the  deed  is  to  be  regarded  as  containing  the  covenant  of  seisin, 
or,  indeed,  any  other  covenant,  it  must  be  by  virtue  of  the  law  of 
Missouri,  set  out  in  the  [)leading. 

Hence,  the  question  arises,  whetbor  n,  dpfd,  pvfr'i|ted  in  Indiana, 
between  her  citizens^  for  Innrl  in  nnof.lior  St^itri  1'-n<-^'^"<^'^''"'"p-  nn  pf^yp,- 
nants  whatever  by  the  law  of  Indiana^  shall  bo  construed  as  contnininrr. 
bv  implication,  such  covenants  as  would,  bv  the  law  of  the  State  where 
tlie  land  lies,  be  regarded  as  contained  in  i]]p,  floo'l- 

This  is  an  interesting  and  a  somewhat  novel  question.  We  have 
been  furnished  with  able  briefs  b}'  counsel  for  the  respective  parties, 
who  have  cited  the  general  authorities  upon  the  point,  but  Act  no  case 
has  been  found  entirely  in  point. 

There  can  be  no  doubt  th:it  the  law  of  .Missouri,  alone,  can  be  lookcil 
to  in  order  to  detern^iiie  ^^'lletller  the  deed  in  question  was  suftic^ient  to  ... 
pass  the  title.     In  the   sale  and  conveyance  of  real  estate,  so  far  as 
regards  the   capacity  of  the   parties  to  convey  and   hold,  resj)ectivelv, 
the  formalities  necessary  to  a  valid  transfer,  the  dominion  and  enjoy- 


SECT.  IV. J  BETHELL    V.    BETHELL.  513 

ment_of_the  same  by  the  vendee,  and  the  right  of  succession  thereto, 
and  all  other  incidents  to  the  acquisition  of  the  land,  the  lex  rp.i  nitxR. 
governs^ 

But  it  does  not,  therefore,  necessarih*  follow  that  the  lex  rei  sitce  so 
far  governs  conveyances  made  elsewhere  as  to  change  their  character 
as  mere  conveyances  and  invest  them  with  the  character  of  personal 
covenants  not  necessary  to  the  transmission  of  the  property. 

We  are  referred  by  the  counsel  for  the  appellee  to  the  case  of 
McGoon  r.  Scales,  9  Wall.  23,  in  which  Mr.  Justice  Miller  said  :  "It 
is  a  principle  too  firmly  established  to  admit  of  dispute  at  this  da}', 
that  to  the  law  of  the  State  in  which  land  is  situated,  we  must  look  for 
the  rules  which  govern  its  descent,  alienation,  and  transfer,  and  for  the 
effect  and  construction  of  conveyances." 

This  was  said,  however,  in  reference  to  the  question  whether  the  title 
did  actualh'  pass  b}'  a  certain  deed.  Tlie  question  was,  whether  "  the 
effect  and  construction"  of  the  conveyance  were  such  as  to  pass  the 
title. 

As  we  desire  to  decide  nothing  but  the  exact  question  presented 
here,  and  as  the  distinction  between  covenants  running  with  the  land 
and  those  not  running  with  the  land  may  perhaps  be  supposed  to  enter 
into  the  question,  we  proceed  to  consider  the  character  of  the  covenant 
alleged  to  have  been  broken.  The  supposed  covenant,  of  which  a 
breach  is  alleged,  is  the  covenant  of  seisin.  And  it  is  alleged  that  the 
land  was  never  in  the  possession  of  the  defendant  or  the  plaintiff. 
There  are  some  cases  holding  that  the  covenant  of  seisin  runs  with  tiie 
land,  where  the  grantor  was  in  possession  and  delivered  possession  to 
the  grantee.  But  all  the  cases,  so  far  as  we  are  advised,  hold,  that 
where  the  grantor  is  not  in  possession  and  does  not  deliver  possession 
to  his  grantee,  the  covenant  of  seisin,  if  the  grantor  had  no  title,  is  at 
once  broken  and  does  not  run  with  the  land.  In  the  case  of  Chambers' 
Adra'r  v.  Smith's  Adm'r,  23  Mo.  174,  it  was  held,  that  '•  If  there  be  a 
total  defect  of  title,  defeasible  and  indefeasible,  and  the  possession 
have  not  gone  along  with  the  deed,  the  covenant  is  broken  as  soon  as  it 
is  entered  into,  and  cannot  pass  to  an  assignee  upon  any  subsequent 
transfer  of  the  supposed  right  of  the  original  grantee.  In  such  case, 
the  breach  is  final  and  complete  ;  the  covenant  is  broken  immediately, 
once  for  all,  and  the  party  recovers  all  the  damages  that  can  ever 
result  from  it.  If,  however,  the  possession  pass,  although  without 
right,  —  if  an  estate  in  fact,  although  not  in  law,  be  transferred  by  the 
deed,  and  the  grantee  have  the  enjoyment  of  the  property  according  to 
the  terms  of  the  sale,  the  covenant  runs  with  the  land  and  passes  from 
party  to  party,  until  the  paramount  title  results  in  some  damage  to  the 
actual  possessor,  and  then  the  right  of  action  upon  the  covenant  vests 
in  the  party  upon  whom  the  loss  falls." 

The  supposed  covenant  in  this  case,  then,  was  one  that  did  not  run 
with  the  land  ;  it  was  purely  personal  and  broken  as  soon  as  entered 
into ;    it  was  not   so  connected   with   the  land  that  any  subsequent 

33 


514 


BETHELL   V.    BETHELL. 


[chap.  X. 


grantee  thereof  could  take  advantage  of  it.  The  question  is  therefore 
narrowed  down  to  this  :  can  a  deed,  executed  in  Indiap-^i  i^ffwPf^n  oLti- 
zens  thereof,  containinp;  nn  nnvppants  wliatevt^r  ficonrdin.o-  to  the  1nw  oi. 
'Indiana.  be'Eeld  by  virtue  of  the  law  of  Missouri,  where  the  ]niid  liea^ 
To" contain  a  covenant  not  running  with  tbe  land  but  broken  as  soon  ag 
We  think  this  question  must  be  answered  in  the  nega- 

er- 


sonal  covenant,  broken  as  soon  as  made,  and  has  nothing  whatever  to_^ 
rlo  with  the  transmission  of  tbe  title  to  the  land.     As  a  treneral  rula* 


entered  into.''       

fTver^A  covenant  of  seisin  not  running  with  the  land  is  purely 


the  lex  loci  contractus  determines  the  construction  and  effect  of  coof 
tracts.  And  we  think  that  where  adeecUs^ made,  as  above  stated,  the 
qTIestTorTwhether  it  contains  ^ucbTa  covenanTls  to  be  determijied  by 
TTie~Tavir  of  the~tjkice  where  it  is  ma"He^ 


iTeTasedoes  not  fall  within  another  rule  of  law  well  established, 


viz.,  that  where  a  contra'-^  is  t.r>  bp  pprfnrmedjn^a  place  differen^JVom^ 
thnijn  wliieh  it  is  made,  the  law  of  the  place  of  oerforman"ce  is  to 
gov^MTijLhe  contract.      Here,  the  contract  was  completely  expeuted  and . 
was   not    evp^"tnrv.     By  the  terms  of  the  deedjhe^'^   ^^-^    nnthin^o- 


^^^JV^j^.»v  f^   hp   flnnp   hy  fhp  cry^y^fn.,-^  pjfhpr  in    Mjssouri  or  elspwlipre^ 
T[icre  were  no  stipulations  that  bound  him  to  the  performance_of  jmx, 
~U^^^^o.\..     Whatever  Jitle  did  "or  could  pass  by  the  deed  passj  " 


mediately   upon   its  execution  and    delivery,    and  there  was   nothing 
further  to  be  done  by  the  grantor.  ~~         ' 

As  the  deed  was  executed  in  Indiana,  and  as  the  parties  resided 
therein,  it  would  seem  that  they  accepted  the  law  of  Indiana  as  the 
exponent  of  tlie  rights  conferred,  and  obligations  imposed  thereby, 
beyond  the  mere  passing  of  the  title.  The  case  of  Thurston  v.  Rosen- 
field.  42  Mo.  474,  is  closely  analogous  in  principle.  Rosenfield  failed 
in  business  in  New  York,  and  in  that  State  made  an  assignment  of  his 
effects,  including  certain  real  estate  in  Missouri,  in  which  assignment 
certain  creditors  were  preferred.  The  assignment  was  regularly  exe- 
cuted and  acknowledged,  so  as  to  pass  the  title  to  the  land  in  Missouri, 
but  according  to  the  laws  of  Missouri  it  was  void  on  account  of  tlie 
preference  given  to  some  of  the  creditors.  But  it  was  held,  as  tlie  par- 
ties were  residents  of  New  York  and  New  Jersey,  and  as  the  assign- 
ment was  valid  by  the  law  of  New  York  where  it  was  executed,  and  as 
the  policy  of  the  Missouri  law  was  to  deny  preferences  in  that  State, 
that  the  assignment  was  governed  by  the  law  of  New  York,  and  it  was 
uplield  accordingly.     See  Whart.  Conll.  Laws.  §  276. 

'rh2-Jmv  <^^  MisRnnri  naimQt-axl.»»n4- 4^ev<»B4-l4eiilcidtorial  limits  so 
as  to  make  an  instruiiKLUljcoiit.-iiiiin;;.imjQQ:s:iUUiiis.  executed  in  another 
^^gT^Ifv,  l^fitwpftn  p.itizpns  thereof,  contfiin  i»w^A  4i-GQyimaJit  as  that  alleged 
here  tohave  been  brokgji. 

^"TlielJase  of  Carver  r.  Louthain,  38  Ind.  530,  was  an  action  upon  the 
covenants  contained  in  a  deed  for  the  conveyance  of  land  situate  in 
the  State  of  Illinois.  The  question  docs  not  seem  to  have  been  nmde 
whether  the  covenants  were  governed  by  the  law  of  Illinois,  or  other- 


SECT,  v.]  WAVERLY   NATIONAL    BANK    V.   HALL.  515 

wise.  But  the  case  was  decided  upon  the  theory  that  the  law  of 
Indiana  was  appUcable  to  it. 

The  case  is,  of  course,  less  authoritative  upon  the  point  than  if  the 
question  had  been  made. 

We  are  of  opinion  that  the  second  paragraph  of  the  complaint  failed 
to  state  facts  sufficient  to  constitute  a  cause  of  action,  and  that  the 
demurrer  thereto  should  have  been  sustained. 

The  judgment  below  is  reversed,  with  costs,  and  the  cause  remanded 
for  further  proceedings  in  accordance  with  this  opinion. 


SECTION   V. 

EFFECT. 


WAVERLY   NATIONAL  BANK  v.   HALL. 

Supreme   Court   of   Pennsylvania.     1892. 
[Beported  150  Pennsylvania,  466.] 

Heydrick,  J.^  Tlie  plaintiff  sues  upon  notes  made  by  C.  M.  Cran- 
dall,  one  of  the  defendants,  in  his  own  name,  and  seeks  to  charge  the 
other  defendants  as  partners  of  Crandall  in  a  business  in  which  the 
proceeds  of  certain  other  notes,  of  which  these  were  renewals,  were 
used.  The  evidence  relied  upon  to  establish  the  alleged  partnership  is 
a  contract  in  writing  between  Crandall  of  the  one  part,  and  the  other 
defendants  of  the  other  part,  dated  February  24,  1885.  If  this  con- 
tract does  not  create  a  partnership  as  to  creditors  it  cannot  be  success- 
fully contended  that  all  the  evidence  in  the  cause  taken  together  tends 
to  charge  anybody  but  Crandall ;  and  inasmuch  as  all  the  assignments 
of  error  are  predicated  upon  the  assumption  that  such  partnership  was 
created  by  that  contract,  it  is  evident  that  if  that  assumption  was 
unfounded  the  plaintiffs  could  not  have  been  injured  by  the  rulings  com- 
plained of,  and  hence,  though  there  may  have  been  technical  error 
therein,  the  judgment  ought  not  to  be  disturbed.  It  is,  therefore,  per- 
tinent to  inquire  what  were  the  rights  and  liabilities  of  the  parties  under 
that  contract,  although  the  question  is  not  directly  raised  by  any  of  the 
assignments  of  error. 

The  whole  scope  of  the  contract  indicates  that  a  loan  of  money  to 
Crandall  by  the  other  parties  in  consideration  of  a  share  of  the  profits 
of  a  business  in  which  he  was  to  embark  was  intended,  and  not  a  con- 
tribution to  the  capital  of  a  partnership  of  which  the  parties  were  tooe 

1  Part  of  the  opinion  only  is  given.  —  Ed. 


516  WAVEULY    NATIONAL   BANK    V.    HALL,  [CIIAP.  X. 

the  members.  The  parties  of  the  second  part  covenanted  to  furnish 
three  thousand  dollars  to  Crandall,  and  not  to  a  firm  ;  they  were  to 
furnish  it  to  him  from  time  to  time  as  he  might  require  it,  and  its 
repayment  to  them  was  to  be  secured  by  a  chattel  mortgage  upon  the 
tools,  machinery,  furniture,  and  fixtures  of  every  kind  and  nature  belong- 
ing to  or  connected  with  the  business  in  which  it  was  to  be  used. 
Crandall  might  repay  it  at  his  option  before  the  expiration  of  the  full 
term  for  which  he  had  the  right  to  demand  it ;  and,  although  it  vvas 
stipulated  that  the  money  so  to  be  furnished  should  be  used  in  the 
business  contemplated,  the  I'ight  of  entire  control  of  that  business  was 
recognized  to  be  in,  and  was  expressly  conceded  to  Crandall.  And  it 
was  further  stipulated  that  nothing  in  the  writing  contained  should  be 
construed  to  create  a  partnership  between  the  parties  thereto  except  as 
to  the  profits  of  the  business.  These  provisions  are  ail  consistent  with 
the  relation  of  borrower  and  lender,  and  some  of  them  are  inconsistent 
with  anv  other  relation.  It  is  therefore  manifest  that  that  relation  was 
intended  to  be  established  ;  and  the  next  question  is  whether,  in  spite 
of  the  intention  of  the  parties,  the  community  of  interest  in  the  profits 
constituted  them  a  partnership  as  to  creditors. 

Tfjiij'i  w*^''*^  <»  T^t^nns^lvania  contract  the  question  would  be  answerecL. 
m  fhe  negative  bvlhely^  nt  Anni  (i.  l.-S/urF.  L.  56,  and  by  Hart  C. 
Kt^llv^  88  Pa.  281).  -  But,  although  it  was  made  in  this  State-  it  vy^^s  f^. 
be  executed  in  the  State  of  New  York.  Such  cases  are  stated  by 
approved  text  writers  to  be  an  exception  to  the  general  rule  that  the 
lex  loci  applies  in  respect  to  the  nature,  obligation,  and  construction  of 
contracts.  That  exception  is  thus  stated  by  Judge  Story  :  "  But  wlj^re 
the  contract  is  either  expressly  or  tacitly  to  be  performed  m  any  other 
place  tlie  general  rule  is  in  conformity  to  the  presumed  intention  of  the 
parties  that  the  contract,  as  to  its  validity,  nature,  obligation,  and  inter- 
pretation, is  to  be  governed  by  the  law  of  the  place  of  performance," 
Conflict  of  Laws,  §  "280,  Chancellor  Kent,  after  stating  the  exception 
in  substantially  the  same  terms,  adds  that  it  "  is  more  embarrassed  than 
any  other  branch  of  the  subject  (the  lex  loci)  by  distinctions  and  jarring 
decisions."  2  Com.  459.  But  whatever  conflict  of  authofity  tlicn;  \\]p^v 
be  in  respect  to  the  exception,  all  af^ryoe  that  matters  connocteil  witJi 
tJurprHorTrinrv^"  ^^  ^  pnntivi7-t  pr^  ivo-iilnted  by  the  Inw  provnilin"^ftti 
tlie  place  o^*  prrflM'lir"^^'  Brown  r.  Railroad  Co.,  83  Pa.  31 G  ;  Scudder 
V.  Union  National  Bank,  91  U.  S.  40G.  Under  the  present  contract  it 
is  clear  there  could  be  no  liability  to  third  persons  without  a  perform- 
ance as  between  the  parties  to  it,  and  therefore  the  question  of  such 
liability  would  necessarily  be  connected  with  or  grow  out  of  such  per- 
formance and  be  determinable  by  the  law  of  New  York. 

More  than  a  century  ago  Chief  Justice  De  Grey,  in  Grace  v.  Smith, 
2  Wm,  Bl.  998,  laid  down  the  proposition  that  "  every  man  that  has  a 
share  of  the  profits  of  a  trade  ought  also  to  bear  his  share  of  the  loss." 
In  a  few  years  the  principle  thus  stated  became  recognized  as  a  part  of 
the  law  of  England,  and  so  continued  until  18G0,  when  it  was  over- 


SECT,  v.]  BALDWIN   V.    CxRAY.  517 

thrown  by  the  House  of  Lords  in  Cox  v.  Hickman,  8  H.  L.  C.  268. 
On  this  side  of  the  Atlantic,  and  especially  in  tlie  State  of  New  York, 
it  was  accepted  without  question,  so  far  as  I  have  observed,  as  to  the 
soundness  of  the  reasons  put  forth  in  support  of  it,  until  it  was 
exploded  in  England.   .   •   . 

It  is  said,  however,  in  Hackett  v.  Stanley,  115  N.  Y.  625,  .  .  .  that 
"  exceptions  to  the  rule  (that  participation  in  profits  of  a  business 
renders  the  participant  liable  to  creditors)  are,  however,  found  in  cases 
where  a  share  in  profits  is  contracted  to  be  paid,  as  a  measure  of  com- 
pensation to  employees  for  services  rendered  in  the  business,  or  for  the 
use  of  moneys  loaned  in  aid  of  the  enterprise."  It  is  not  material  to 
inquire  how  much  more  of  the  rule  is  left  by  this  exception  than  was 
left  by  Cox  v.  Hickman.  It  is  enough  that  the  present  case  comes 
within  the  letter  and  the  spirit  of  the  exception.  The  parties  who 
made  the  loan  and  who  are  now  sought  to  be  held  liable  as  partners 
had  no  voice  or  part  in  the  prosecution  of  the  business  either  as  piin- 
cipals  or  otherwise,  nor  had  they  an  irrevocable  right  to  demand  a 
share  of  the  profits  as  was  the  ease  in  Hackett  v.  Stanley.  The  light 
of  control,  or  any  voice  in  the  control,  an  incident  of  proprietorship, 
was  denied  to  them.  And  the  implication  of  partnership  from  com- 
munity of  interest  in  the  profits  was  excluded  by  an  express  stipulation, 
the  absence  of  which  in  Hackett  v.  Stanley  was  thought  to  be  worthy 
of  notice  :  and  their  right  to  demand  a  share  of  the  profits  was  to  ter- 
minate upon  repayment  of  the  money  advanced  at  the  end  of  five 
years,  or  sooner  at  the  option  of  Crandall.  In  all  its  material  pro- 
visions the  contract  under  consideration  is  not  distinguishable  fi;ora 
that  in  Curry  r.  Fowler,  87  N.  Y.  33,  or  from  those  provisions  of  the 
contract  in  Hackett  v.  Stanley  which  it  is  there  conceded  would  create 
no  other  relation  than  that  of  borrower  and  lender. 

For  these  reasons  the  defendants  as  to  whom  issue  was  joined 
are  not  liable  to  the  plaintitf,  and  therefore  the  judgment  must  be 
aflfirmed. 


BALDWIN  V.   GRAY. 
Supreme  Court  of  Louisiana.     1826. 

[Reported  4  Martin,  New  Series,  192.] 

Porter,  J.^  The  facts  in  this  case  do  not  appear  to  be  controverted  ; 
the  only  matter  disputed  is  the  legal  obligations  which  arise  on  them. 

The  plaintiff  was  agent  for  the  steamboat  "Fayette,"  of  which  the 
defendant  was  part-owner.  This  action  is  instituted  to  recover  the 
amount  of  an  appeal  bond,  given  in  an  action,  wherein  the  owners  of 

1  Part  of  the  opinion  only  is  given.  —  Ed. 


518  KING   V.    SAERIA.  [CHAP.  X. 

this  boat  were  defendants,  and  also  for  mone3's  paid  for  tiie  expenses 
of  the  boat  while  in  this  port. 

It  is  insisted  the  defendant  is  liable  in  solido,  because  the  contract 
by  which  he  became  interested  in  this  vessel  was  entered  into  at  Pitts- 
burg, in  the  State  of  Pennsylvania,  where  the  common  law  prevails. 

This  law  governs  the  obligation  of  the  partners  with  each  other,  but 
not  with  third  persons.  It  can  no  more  atTect  the  rights  of  those  who 
contract  with  them  in  a  different  country,  than  particular  stipulations 
between  the  partners  could.  The  contract  entered  into  in  the  case  be- 
fore us  was  made  in  this  State,  and  must  be  regulated  by  llie  lex  loci 
contractus.  This  is  the  general  rule,  and  we  know  of  no  exception  to 
it,  unless  the  agreement  is  in  respect  to  land  in  another  countrj-.  or  the 
performance  is  to  be  in  another  State.  A  foreigner  coming  into  Louisi- 
ana who  was  twenty-three  years  old  could  not  escape  from  a  contract 
with  one  of  our  citizens  by  averring  that  according  to  the  laws  of  the 
country  he  left  he  was  not  a  major  until  he  reached  tiie  age  of  twenty- 
five. 

We  think,  therefore,  that  the  defendant  is  only  liable  for  his  virile 
portion  of  the  moneys  laid  out  and  expended  on  the  steamboat  "  Fay- 
ette."   Caroll  V.  Waters,  9  Mart.  500. 


KING  V.   SARRIA. 
Court  of  Appeals,  New  York.     1877. 

[Reported  69  New  York,  24.] 

FoLGER,  J.^  The  plaintiffs  seek  to  recover  a  sum  of  money  from  the 
defendant  Sarria,  upon  contract.  They  do  not  show  that  he  in  person 
made  with  them  the  contract  which  they  allege.  It  is,  indeed,  one  of 
the  conceded  facts  in  the  case,  that  the  contract  was  made,  as  matter 
of  fact,  by  persons  otiier  than  Sarria.  To  succeed,  then,  in  their  action, 
they  must  show  that  those  persons  in  some  way  represented  Sarria,  and 
had  authority  to  bind  him  thereto,  to  the  full  extent  to  which  the  plain- 
tiffs seek  to  hold  him.  To  show  such  authority,  proof  is  made  that 
Sarria  was  a  partner  with  Grau  &  Lopez,  and  that  the  latter  two,  under 
the  firm  name  of  Grau,  Lopez  &  Co.,  made  the  contract.  If  nothing 
more  appeared  in  the  case,  this  would  sutlice  for  the  plaintiffs  ;  for,  by 
virtue  of  the  relation  of  partnership,  one  partner  becomes  the  general 
agent  for  the  other,  as  to  all  matters  within  the  scope  of  the  partnership 
dealings,  and  has  thereby  given  to  him  all  authority  needful  for  carr}'- 
ing  on  the  partnership,  and  which  is  usually  exercised  b}-  partners  in 
that  l)usiness.  ILiwken  /•.  Bourn-?,  8  M.  &  W.  703.  Indeed,  it  is  as 
agent  that  the  power  of  one  partner  to  bind  his  co-partner  is  obtained 

^  I'art  of  the  opiuiou  ouly  is  j^iveu.  —  Ed. 


SECT,  v.]  KING   V.    SARRIA.  ^^^ 

and  exercised.  The  law  of  partnership  is  a  branch  of  the  law  of  prin- 
cipal and  agent.  Cox  v.  Hickman,  8  H.  of  L.  Cas.  268  ;  Baring  v. 
Lyman,  1  Story,  396  ;  Worrall  v.  Munn,  5  N.  Y.  229.  In  the  case 
first  above  cited  (8  M.  &  W.  supra),  it  is  added  :  that  any  restriction 
which  by  agreement  amongst  the  partners  is  attempted  to  be  imposed 
upon  the  authority  which  one  partner  possesses  as  the  general  agent 
of  the  other,  is  operative  only  between  the  partners  themselves,  and 
does  not  limit  the  authority  as  to  third  persons,  who  acquire  rights  by 
its  exercise,  unless  they  know  that  such  restriction  has  been  made.  It 
is  manifest,  however,  that  this  remark  is  to  be  qualified,  when  taken  in 
connection  with  any  statute  law,  which  has  provided  for  the  formation 
of  Umited  partnerships,  where  that  statute  law  is  operative.  A  due 
observance  of  such  statutory  provisions  limits  the  liability  of  the  si)ecial 
partner.  It  limits,  too,  the  authority  of  the  general  partner,  as  the 
agent  of  the  special  partner,  and  fixes  beforehand  the  extent  to  which, 
as  agent,  he  may  bind  the  special  partner.  It  is  hardly  necessary  to 
say  that  when  a  limited  partnership  is  duly  formed  and  carried  on  under 
our  statute,  though  the  general  partner  is  the  agent  for  all  the  part- 
ners, with  powers  full  enough  to  transact  all  the  business  of  the  firm, 
and  to  bind  it  to  all  contracts  within  the  scope  of  that  business,  he  gets 
no  authority,  from  his  relation  as  partner  and  agent  of  the  special 
member  of  the  firm,  to  fix  upon  him  any  greater  liability  than  that 
which  has  been  stipulated  for.  These  principles  are  stated  here,  not 
as  new  or  forgotten  by  any  one,  b"-  as  the  basis  upon  which  the  de 
termination  of  this  case  will  rest. 

It  turned  out  that  the  partnership  of  Grau,  Lopez  &  Co.  was  createa 
by  a  formal  instrument  in  writing,  and  that,  by  its  terms,  the  liability 
of  Sarrla  was  special,  and  limited  in  extent  to  a  fixed  amount.     That 
instrument   (it    is  found  as  fact  by  the  learned  referee),  and  all  the 
doings  of  the  three  partners  under  it  have  been  in  due  accord  with 
the  commercial   code  of  Spain,  of  which  nation  they  were  citizens, 
and  under  whose  government  and  laws  they  were  living  and  acting 
when   they  executed  the  instrument,  and  formed  and  carried  on  the 
partnership.     And  it  is  proven  and   found  as   fact  in  the  case,  that 
wlien,  in  due  pursuance  of  the  Spanish  law,  a  person  has,  as  did  Sarria, 
entered  into  such  a  partnership  with  others,  and  has,  as  did  Sarria  and 
his  partners,  duly  observed  and  carried  out  the  provisions  of  the  law 
and  the  terms  of  their  agreement,  the  liability  of  the  special  partner, 
as  was  Sarria,  is  limited  to  the  amount  of  funds  which  he  has  con- 
tributed according  to  his  agreement.     It  is  well  to  observe  here,  that 
the  learned  referee  has  found  that  Sarria  never  had  any  partnership 
connection  with  Grau  &  Lopez,  other  than  that  of  a  limited  partner ; 
that  he  did  not  use,  nor  permit  to  be  used,  his  name  in  the  firm  name ; 
that  he  did  not,  by  any  representation,  act,  or  omission,  hold  himself 
out,  or  render  himself  liable,  as  a  general  partner.     We  have  then, 
Sarria  himself  making,  in  person,  no  contract  with  the  plaintiffs,  and 
giving  a  special  and  express  authority  only,  to  Grau  &  Lopez  to  make 


520  KING   V.    SARRIA.  [CHAP.  X. 

one,  which  authorit}'  was  in  exact  pursuance  of  law.  Those  who  deal 
with  one  as  agent  do  so  at  their  peril,  if  it  turns  out  that  he  had  no 
authority  from  a  principal ;  and  where  they  rely  upon  his  delegated 
authority  as  that  of  a  partner,  and  know  that  the  partnership  was 
created  in  another  country,  must  the}'  not  look  to  it,  to  see  how  far 
that  law,  and  the  partnership  under  it,  gave  power  to  the  acting  part- 
ner? (  As  then,  the  power  of  Grau  &  Lopez  to  bind  Sarria  by  contract 
was  tnUt  of  partners,  that  is,  of  agents  ;  and  as  their  authority  was  law- 
full}'  restricted,  so  that  they  could  not  bind  him  in  a  liability  greater 
than  that  named  in  the  contract  of  partnership,  it  seems  to  follow  that 
the  plaintiffs  have  no  contract  which  can  be  enforced  against  Sariia, 
otherwise  or  further,  than  is  provided  for  by  the  terms  of  that  authority.  J 
Nor  did  Grau  &  Lopez  make  the  contract  with  the  plaintiffs  in  the 
name  of  Sarria,  nor  with  any  special  claim  of  right  to  represent  him. 
They  made  it  in  the  name  of  Grau,  Lopez  &  Co.,  and  claiming  only  to 
represent  that  partnership.  As  to  Sarria,  the  unnamed  partner,  they 
were  agents,  acting  under  an  authorit}-  special,  express,  limited,  and 
could  give  to  the  plaintiffs  no  more  claim  upon  Sarria  than  such  an 
authority  empowered  them.  The  plaintiffs  were  subject,  in  these  deal- 
ings with  Sarria,  to  the  limitations  which  he  had  lawfully  put  upon  tne 
powers  of  his  agents.  Again,  to  state  fam.iliar  doctrine,  no  one,  in 
dealing  with  an  agent,  may  hold  the  principal  to  a  contract  which  was 
not  within  the  authorit}^  of  the  agent  to  make  ;  nor  where  there  is  an 
express  written  authority',  is  it  to  be  enlarged  by  parol,  or  added  to  by 
implication.  It  is  to  be  construed,  as  to  its  nature  and  extent,  accord- 
ing to  the  force  of  the  terms  used,  and  the  objects  to  be  accomplished. 

But  it  is  claimed  b}'  the  learned  counsel  for  the  plaintiff  that  the 
Commercial  Code  of  Spain  cannot  have  an  extraterritorial  effect ;  and 
that  one  dealing  in  this  State,  in  which  that  law  does  not  rule,  cannot 
avail  himself  of  its  effect.  If  this  be  so,  it  must  be  because  the  law  of 
this  State  forbids  a  foreigner,  in  such  a  case  as  this,  from  invoking 
the  aid  of  any  law  of  his  domicil.  But  one  country  recognizes  and 
admits  the  operation  within  its  own  jurisdiction  of  the  laws  of  an- 
other, when  not  contrary  to  its  own  public  polic}',  nor  to  abstract 
justice,  nor  pure  morals.  It  does  this  on  the  principle  of  comity. 
It  has  been  so  long  practised  that  it  is  stated  as  a  principle  of  pri- 
vate international  jurisprudence,  that  rights  which  have  once  well 
accrued  by  the  l-aw  of  the  appropriate  sovereign  arc  treated  as  valid 
evoryvvhere.     Westlake  on  Priv.  Int.  Law,  art.  58. 

The  principle,  from  which  originates  the  influence  exercised  by  the 
law  of  a  foreign  State,  in  determining  the  status  or  rights  of  its  sub- 
jects in  another  country,  is  thus  well  stated.  It  is  the  necessar}-  in- 
tercourse of  the  subjects  of  independent  governments,  which  gives  rise 
to  a  sort  of  compact,  that  their  municipal  institutions  shall  receive  a 
degree  of  recii)roeal  efficacy  and  sanction  within  their  respective  do- 
minions. It  is  not  the  statutes  of  one  connnunitv  which  extend  their 
controlling  power  into  the  territories  of  another ;  it  is  the  sovereign  of 


SECT,  v.]  KING   V.    SAKRIA.  521 

each  who  adopts  the  foreign  rule,  and  applies  it  to  those  particular 
eases  in  which  it  is  found  necessarj'  to  protect  and  clierish  the  mutual 
intercourse  of  his  subjects,  with  those  of  the  countr}-  whose  laws  he 
adopts.  Per  Sir  Samuel  Romilly,  arguendo,  Shedden  v.  Patrick, 
1  Macqueen's  H.  of  L.  Cases,  554. 

It  cannot  be  said  that  there  is  a  rule  of  exclusion,  on  account  of 
this  particular  law  being  contrary  to  our  public  policy.  It  much  re- 
sembles our  own  statute  for  the  formation  of  limited  partnerships, 
and,  with  some  difterence  in  detail,  it  aims  at  the  same  beneficial  re- 
sult, which  ours  has  in  view  ;  nor  may  we  saj-,  with  our  statute  before 
us,  that  the  law  is  opposed  to  good  morals  or  abstract  justice.  There 
cannot  be  that  exclusion,  because  it  is  a  rule  of  our  law  not  to  give  in 
an}'  case  to  a  foreigner  the  benefit  of  the  law  of  his  domicil. 

Mr.  Nash  was  correct,  in  opening  his  argument,  in  saying  that  this 
is  a  case  of  first  impression  in  this  State.  Hence  it  is,  that  in  looking 
for  the  reasons  upon  which  it  is  to  be  decided,  we  have  to  be  governed 
by  the  analogies  of  the  law,  rather  than  cases  in  point.  Let  us  see 
where  those  analogies  tend.  If  one  marry,  where  marriage  is  only  a 
civil  contract,  his  marital  relation  will  be  held  valid,  in  a  countrj-  where 
a  religious  ceremon}'  is,  b}'  its  law,  deemed  vital.  The  same  principle 
prevails  with  us,  though  not  called  into  application  by  such  a  state  of 
facts.  It  is  an  established  principle  that  the  law  of  the  place  where 
contracts  purel}'  personal  are  made,  must  govern  as  to  their  construc- 
tion and  validity,  unless  they  are  made  to  be  performed  in  another 
State  or  country.  Curtis  v.  Leavitt,  15  N.  Y.  227  ;  Chapman  v.  Rob- 
ertson, 6  Paige,  627.  This  contract  of  partnership  was  made  to  be 
performed  in  Cuba.  The  contract  made  by  the  partnership  with  the 
plaintiffs,  it  may  be  conceded,  was  made  in  New  York,  to  be  performed 
here.  The  contract  with  the  plaintiffs  will  be  construed  and  enforced 
by  the  laws  of  this  State,  and  they  will  determine  the  nature  and  extent 
of  the  liability  upon  it,  of  the  partnership,  the  maker  of  it.  The  for- 
mer, the  contract  of  partnership,  between  the  members  of  the  firm, 
will  be  construed  and  weighed  by  the  laws  of  Spain,  and  they  will 
determine  the  liability  of  Sarria,  and  the  extent  of  the  authority  given 
by  him  to  Grau  &  Lopez.  In  Comm.  of  Ky.  v.  Bassford,  6  Hill,  526, 
the  Supreme  Court  of  this  State  maintained  an  action  on  a  bond,  given 
to  secure  the  paj'ment  of  mone}*,  to  be  raised  and  distributed  b}'  a  lot- 
tery, on  the  ground  that  it  was  a  valid  and  legal  obligation  in  Ken- 
tucky, where  it  was  assumed  that  it  was  made,  and  where  it  was  to  be 
executed,  though  opposed  to  the  statutory  policy  of  this  State.  And 
the  rule  has  been  so  far  carried,  in  one  jurisdiction,  in  recognizing  the 
law  of  the  domicil,  as  to  enforce  a  claim  of  propert}'  in  slaves.  Mad- 
razo  V.  Willes,  3  Barn.  &  Aid.  353  ;  see  also.  Greenwood  v.  Curtis, 
6  Mass.  358  ;  Com.  v.  Aves,  18  Pick.  215  ;  The  Antelope,  10  Wheat. 
66  ;  and  so  far  in  another  jurisdiction  as  to  hold  good  a  sale  of  lottery 
tickets  in  this  State.     Melntyre  i\  Parks,  3  Mete:  207. 

There  is  a  close  analogy  between  this  case  and  questions  arising  as 


622  KING   V.   SAE2!A..  [CHAP.  X. 

to  the  aiithoritj'  of  the  master  of  a  vessel  to  bind  his  owners  in  a  for- 
eign port.  Though  the  sokition  of  the  latter  depends  upon  the  rules 
of  the  maritime  law  more  particularly,  yet  the  relation  of  the  master 
and  the  owners  is  but  a  branch  of  the  general  law  of  principal  and 
agent,  and  so  the  ultimate  reason  of  each  starts  from  the  same  root. 
It  is  not  a  new  doctrine,  that  a  master  of  a  vessel  cannot  bind  her 
owners  in  a  foreign  port,  to  any  greater  liability  than  will  be  recognized 
by  the  law  of  their  domicil.  Pope  v.  Nickerson,  3  Story,  465.  And 
the  rule  there  laid  down  has  been  recognized  and  applied  in  the  Court 
of  Queen's  Bench,  on  the  principle  that  the  power  of  the  master  to  bind 
the  owners  personally  is  but  a  branch  of  the  general  law  of  agency. 
Lloyd  y.  Guibert,  6  Best  &  Smith,  100;  s.  c.  in  Exch.  Ch.,  id.  That 
case,  also,  in  its  reasoning,  recognizes  the  distinction  which  we  have 
stated,  (between  the  law  which  is  to  affect  the  question  of  the  authority 
to  make  a  contract,  and  that  which  is  to  determine  the  validity  and 
effect  of  the  contract  when  made.X  It  was  urged  there,  too,  by  counsel, 
but  without  effect,  that  the  law  of  the  place  where  the  contract  was 
made,  and  of  the  place  where  it  was  to  be  performed,  was  different 
from  the  law  of  the  domicil  of  the  defendants.  It  was  also  urged  that 
the  contract  entered  into  was  boiiajide,  hi  the  ordinary  course  of  busi- 
ness b}'  the  master,  and  within  the  scope  of  his  ostensible  autliorit}'  to 
contract ;  and  that  his  power  could  not  be  narrowed  by  provisions  of 
foreign  law,  unknown  to  the  party  dealing  with  him,  more  than  by 
secret  instructions,  but  urged  without  avail.  So,  also,  in  the  case  of 
The  Moxham,  1  P.  Div.  107,  it  is  pertinently  said:  "  One  can  under- 
stand that  a  contract  between  master  and  servant,  or  the  relations  be- 
tween principal  and  agent,  may  affect  a  contract  made  b}'  the  agent, 
qua  agent,  with  foreigners  ;  that  is  to  sa}',  it  may  affect  the  nature  and 
extent  of  his  agenc}'." 

So,  too,  in  actions  of  tort,  it  has  been  held  that  an  extraterritorial 
law  will  furnish  a  defence  in  the  courts  of  England.  Phillips  f.  Eyre, 
Law  Rep.  6  Q.  B.  1.  It  is  said  that  an  act  committed  abroad,  if  valid 
and  unquestionable  by  the  law  of  the  place,  cannot,  so  far  as  civil  lia- 
bility is  concerned,  be  drawn  in  question  elsewhere,  unless  by  force  of 
some  distinct,  exceptional  legislation.  See  also  Dobree  v.  Napier, 
2  Bing.  N.  C.  781. 

The  effect  of  the  judgments  in  these  cases  is  this  :  That  where  the 
essentials  of  a  contract  made  under  foreign  law  are  not  hostile  to  the 
law  and  policy  of  this  State,  the  contract  may  be  relied  upon  and 
availed  of  in  the  courts  of  this  State.  If  the  substance  of  the  contract 
is  against  that  law  and  policv,  our  judicatories  will  refuse  to  entertain 
it  and  give  it  effect.  Hence,  the  contract  of  partnership  made  by 
Sarria,  in  Cuba,  may  be  availed  of  by  him  hcre.^ 

1  Ace.  Banwws  v.  Downs,  9  K.  I.  446;  Hastings  v.  llopkiusoii,  28  Vt.  108. — Ed. 


BECT.  V.J       CHATENAY  V.  BRAZILIA^^  SUBMARINE  TELEGRAPH  CO.        523 


CHATENAY  v-  BRAZILIAN   SUBMARINE  TELEGRAPH 

COMPANY. 

Court  of  Appeal.     1890, 

[Reported  [1891]  I   Queens  Bench,  79.] 

Appeal  from  a  judgment  of  Day,  J.,  on  a  preliminar}'  issue. 
In  the  year  1880  the  plaintiff,  who  was  a  Brazilian  subject  and  resi- 
dent in  .Brazil,  executed,  in  lavor  ot  one  tiroe,  a  stock-jaroJ^erQarrjlno; 
<TTr:5«iIftftftfi--Lu  the  city  of  London^a  power  of  attorney  to  purchase- and* 
sell  shares  in  public  companies  and  public  funds.     The  power  of  attor- 

"ne}'  was  in  the  Portuguese  language,  and  was  executed  by  the  plaintiff 
in  Brazil  with  the  formalities  required  by  the  Brazilian  law.  Broe, 
purporting  to  act  under  the  power  of  attorney,  disposed  of  certain 
shares  in  the  defendant  company  which  were  the  propert}'  of  the  plain- 
tiff and  registered  in  his  name.  Broe  did  not  account  to  the  plaintiff  for 
the  proceeds  of  the  sale  of  these  shares,  the  purchasers  of  which  were 
registered  as  owners  in  the  books  of  the  conipan}*.  The  plaintiff  issued 
an  originating  summons  asking  for  the  rectification  of  the  register  by 
inserting  therein  his  name  as  holder  of  the  shares,  and  an  issue  was 
directed  to  be  tried  by  a  jur3'  in  London  to  determine  whether  the 
plaintiff'  was  entitled  to  have  the  register  so  rectified.  Before  this  issue 
came  on  for  trial  an  order  was  made  that  the  question  whether  Brazil- 
ian or  English  law  was  to  govern  the  construction  of  the  power  of 
attorney  should  be  tried  by  a  judge  without  a  jurv.  The  matter  came 
on  before  Day,  J.,  who  decided  that  English  law  was  to  govern  the 
construction  of  the  power  of  attorney,  and  a  certificate  to  that  effect 
was  accordingly  made  out. 
The  defendants  appealed.^ 
Lord  Esher,  M.  R.      In_jhis  case  a  pprsonresident  in   Brazil   ^rul 

^carrvipg  on  business  there  wrote  down  that  wEicb  he  intended  to  be  an^ 
autb'oritv'"to'an  agentTl?^  that  agent  would  accept  the  delegation.     The 


"person  wfaomTig  dt;^!^^"^  be  Tus"~clelcgate  did  afterwards  accept  that 
delegation.  The  question  raised  is,  wh.^t  is  the  meaning  of  that  docii- 
ment?  Now,  I  agree  that  it  has  one  meaning,  and  no  more;  and  the 
queslTon  is,  what  was  the  meaning  of  the  plaintiff  when  he  wrote  that 
document?  The.iiQurt  has  to  ascertain  that  meaning^ j'i;om  a  considera- 
tion of  what  it  is  that  waS  wrTften  under  the  circumstances  in  which  it 
was  written  ;  that  is,  in  other  words,  having  regard  to  the  words  used, 
andjto  tfiie~snrrounding  circunistaTYces^^e  time  tho\-  were  used,   " 

Now,  this  writing  was  a  business  document,  written  in  Brazil  m  the 
Brazilian  language,  and  with  the  formalities  necessary  according  to  the 
Brazilian  law  and  custom,  by  a  man  of  business  carrying  on  business 

1  Arguments  of  counsel  and  concurring  opinion  of  Lindlet,  L.  J.,  are  omitted. 
—  Ed. 


524       CHATENAY  V.  BRAZILIAN  SUBMARINE  TELEGRAPH  CO.       [CHAP.  X. 

in  Brazil.     An  English  court  has  to  construe  it,  and  the  first  thing, 
therefore,  that  the  English  court  has  to  do  is  to  get  a  translation  of  the 
language  used  in  the  document.     Making  a  translation  is  not  a  mere 
question  of  trying  to  find  out  in  a  dictionary  the  words  which  are  given 
as  tlie  equivalent  of  the  words  of  the  document ;  a  true  translation  is 
the  putting  into  English  that  which  is  the  exact  effect  of  the  language 
used  under  the  circumstances.     To  get  at  this  in  the  present  case  you 
must  get  the  words  in  English  which  in  business  have  the  equivalent 
meaning  of  the  words  in  Brazilian,  as  used  in  Brazil,  under  the  circum- 
stances.    Therefore  you  would  want  a  competent  translator,  competent 
to  translate  in  that  way,  and,  if  the  words  in  Brazil  had  in  business  a 
particular  meaning  different  from  their  ordinary  meaning,  yon  would 
want  an  expert  to  say  what  is  tliat  meaning.     Amongst  those  experts 
you  might  want  a  Brazilian  lawyer ;  and  a  Brazilian  lawyer  for  that 
purpose  would  be  an  expert.     That  is  tlie  first  thing  the  court  has  to 
do.     Then,  when  the  court  has  got  a  correct  translation  into  English, 
it  has  to  do  what  it  always  has  to  do  in  the  case  of  any  such  document, 
—  either  a  contract,  or  such  an  authority  as  this,  —  that  is  to  say,  de- 
termine what  is  to  be  taken  to  be  the  meaning  of  the  party  at  the  time 
he  wrote  it,  and  what  is  to  be  inferred  from  the  language  which  be  has 
used.     There  are  certain  inferences  which  are  adopted  in  ascertaining 
the  meaning  of  the  language  used,  unless  in  the  particular  instance  the 
contrary  intention  appears.      One  inference  which  has   been   always 
adoi)ted  is  this:  if  a  contract  is  made  Jn^  country  to  be^xecuted  in 
that^lQuntryv,  unlesTthere  appears  sonietlmig  to JjULContraryL^^iouJiaka 
it  that  the  parties  must  have  intended  that  that  contract,  as  to  its  con- 
struction, and  as  to  its  effect,  and  the  mode  of  carrying  it  out  (which 
really  are  the  result  of  its  jconstruation),  is_to  be  construed  according 
iO-the  law  o£  the  c_ountry  where  it  was  mtyje.     But  the  business  _sense_ 
of  all  business  men  has  coiue  to  this  conclusion.  tli:it  if  a  contract  is 
"^ade  in  one  country  to  be  carried  out  between  the  parties  in  another 
country,  either  in  whole  or  in  part,  unless  there  appears  something  to 
tiie  contraryTltlsJto  be  concluded  that  the  parties  must  have  intended 
'tliat'it  shouldl)e  carried  out  according  toJheJawoXthat_othcr  country, 
^herwise  a  Vei-y~strange  state  of  things  would  arise,  for  it  is  hafclly 
conceivable  that  persons  should  enter  into  a  contract  to  be  carried  out 
in  a  country  contrary  to  the  laws  of  that  country.     That  is  not  to  be 
taken  to  be  the  meaning  of  the  parties,  unless  they  take  very  particular 
care  to  enunciate  such  a  strange  conclusion.     Therefore  the  law  has 
said,  that  if  the  contract  is  to  be  carried  out  in  whole  in  another  coun- 
trv,  it  is  to  be  carried  out  wholly  according  to  the  law  of  that  country, 
and  that  must  have  been  the  meaning  of  tlic  parties.     But  if  it  is  to  be 
carried  out  partly  in  another  country  than  that  in  vvhicli  it  is  made, 
that  part  of  it  which  is  to  be  carried  out  in  that  other  country,  unless 
something  appears  to  the  contrary,  is  taken  to '  have  been  intended  to 
be  carried  out  according  to  the  laws  of  that  country. 

Now,  applying  those  rules  to  the  present  case,  the  first  thing  to  be 


SECT.  VI.]  LEE    V.   ABDY.  525 

done  is  to  get  at  the  true  construction  of  the  language  used  in  the  au- 
thority.    When  the  plaintiff  used  the  Brazilian  language  in  this  docu- 
ment, he  must  have  used  it  in  the  business  sense  given  to  it  in  Brazil. 
Therefore,  that  has  to  be  ascertained  ;  and  then  having  got  that,  the 
equivalent  in  the  English  language  must  be  found.     Having  got  in 
English  the  equivalent  of  the  Brazilian  words,  we  have  to  see  what  the 
meaning  of  the  language  so  used  is.     If  it  appears  that  the  contract  is 
to  be  performed  in  Brazil  wholly,  —  that  is  to  say,  that  the  contract 
shall  be  performed  according  to  Brazilian  law,  —  that  is  the  construc- 
tion of  it,  and  that  is  the  meaning  of  the  parties  ;  but  if  it  appears  that 
it  was  to  be  wholly  carried  out  in  England,  we  should  infer  that  the 
meaning  of  the  parties  and  the  true  construction  of  the  contract  were 
that  it  was  to  be  carried  out  according  to  English  law.     If  we  find  that 
the  authority  might  be  carried  out  in  England,  or  in  France,  or  in  any 
other  country,  we  come  to  the  conclusion  that  it  must  have  been  in- 
tended that  in  any  country  where  In  fact  it  was  to  be  carried  out,  that 
part  of  it  which  was  to  be  carried  out  in  that  country  was  to  be  carried 
out  according  to  the  law  of  that  country.     That  would  be  putting  one 
construction  only  on  the  document,  and  not  putting  a  different  con- 
struction on  it  in  different  countries.     The  one  meaning  that  he  had 
was,  "  I  give  an  authority  which  if  carried  out  in  England  is  to  be  car- 
ried out  according  to  the  law  of  England  ;  if  in  France,  according  to 
the  law  of  France."     That  is  one  meaning,  though  this  authority  is  to 
be  applied  in  a  different  wa}'  in  diflferent  places. 


SECTION    VI. 

ASSIGNIIENT. 


LEE   V.    ABDY. 

High  Court  of  Justice,  Queen's  Bench  Division.     1886. 

[Reported  17  Queen's  Bench  Division,  309.] 

Action  against  the  trustees  of  the  Reliance  Mutual  Life  Insurance 
Society  on  a  policy  of  insurance  upon  the  life  of  Ellis  Laurence  Lee, 
deceased,  by  an  assignee  of  the  polic}'. 

The  defence  {inter  alia)  stated  as  follows:  At  tlie  date  of  the 
alleged  assignment  of  the  policy  the  said  Ellis  Laurence  Lee  was,  and 
he  remained  till  his  death,  a  merchant  domiciled  in  Cape  Colony,  and 


526  LEE    V.    ABDY.  [CHAP.  X. 

the  plaintiff  was  his  wife.  The  title  to  the  policy  money  is  governed 
by  the  law  of  the  said  colony,  according  to  which  the  alleged  assign- 
ment, if  executed,  was  and  is  void  both  by  reason  of  the  alleged  as- 
signee being  the  wife  of  the  said  Ellis  Laurence  Lee,  and  by  reason 
that  the  said  Ellis  Laurence  Lee  was,  and  remained  till  his  death, 
insolvent,  and  that  his  creditors  are  entitled  to  the  policy  moneys. 

The  plaintiff  in  her  reply  objected  that  the  above  statements  of  the 
defence  showed  no  defence  in  law.  It  was  ordered  b}-  Wills,  J.,  that 
the  question  of  law  whether,  assuming  the  facts  stated  in  the  defence 
to  be  true,  the  rights  of  the  plaintiff  under  the  assignment  of  the  policy 
were  governed  b}'  the  law  of  Cape  Colon}-  or  by  that  of  England,  should 
be  disposed  of  before  the  trial,  and  that  the  policj'  should  be  produced 
on  the  argument.  It  appeared  in  the  course  of  the  argument  to  l)e  an 
admitted  fact  that  the  assignment  was  executed  in  Cape  Colony,  though 
it  was  not  expressly  so  stated  on  the  pleadings. 

It  appeared  from  the  policy  that  it  was  effected  by  the  deceased,  Ellis 
Laurence  Lee,  who  was  described  therein  as  resident  at  Kimberley, 
in  South  Africa,  with  the  societ}',  which  was  a  life  insurance  company 
in  London.  It  recited  that  the  proposal  for  assurance,  and  the  usual 
declaration  b}-  the  assured,  had  been  delivered  at  the  office  of  the 
society  by  him,  and  that  the  truth  of  the  statements  therein  were  to 
form  the  basis  of  the  contract.  The  policy  monej',  together  with  such 
further  sum,  if  an}-,  as  might  be  apportioned  by  way  of  bonus  to  the 
policy,  was  to  be  paid  within  three  calendar  months  after  proof  satis- 
factory to  the  directors  had  been  given  of  the  death  of  the  assured 
having  happened  within  the  term  of  the  insurance.  The  policy  con- 
tained the  usual  clause  to  the  effect  that  the  funds  of  the  society  should 
alone  be  answerable  for  any  demand  under  the  policy. 

Day,  J.^  If  it  were  necessar}'  to  determine  where  the  assured  was 
domiciled  when  the  policy  was  entered  into,  or  where  the  policy  must 
be  considered  as  having  been  made,  or  where  it  is  payable,  there  might 
be  some  difficulty  in  doing  so  upon  the  facts  so  far  as  they  at  present 
appear  before  us  ;'  but  in  the  view  I  take  it  is  unnecessar}'  to  go  into 
those  questions.  It  seems  to  me  that  quite  independently  of  those 
considerations  the  assignment  of  the  polic}'  was  invalid.  The  subjcct- 
matter  of  the  assignment  is  a  cjiose  in  acti.onjg.biciL  has  no  locality. 
~THe  general  rule,  sulyect  to  exceptions  which  do  noTJeera  to  me  to 
-  ajjply  to_tlie  present  case,  is  ilmt  the  \  nlidity  and  incidents  of  a  con- 
tract must  be  determined  hy  the  l;i\v  of  tlie  place  where  [t  is  entered 
into^  The  assignment  here  in  question  is  an  assignment  that  exists 
if  at  all  by  virtue  of  a  contract  between  assignor  and  assignee,  and  fl 
cannot  see  how,  if  there  was  no  valid  contract  between  them,  there  can 
be  any  valid  assignment.  Now  the  contract  in  fact  entered  into  by  the 
parties  to  tlie  assignment  was  entered  into  in  Cape  Colony,  and  the 
parties  were  domiciled  tliore,  and,  as  1  have  said,  it  had  relation  to  a 

1  Arguraeuts  of  couusel  and  the  coucurriug  -/'>iiii<in  of  Wills,  J.,  are  oinitteu. — 
Ed. 


SECT.  VI.]  WILLIAMS    V.   COLONIAL   BANK.  527 

chose  in  action  which  has  no  locaUty.  Xt  is  argued  that  the  vaHditv_of 
this  contract  must  be  determined^by  thp  Inw  of  Knglnnd. — Why  slionld 
that  be^o?     The  reason  given  is  that  thejjaijifcs  are  oott-feya-ctirrglvtth 


reference  to  a  contract  which  is  affected  by  tlip,  Inw  of  England. — I'linJih, 
consideration  seems  to  me  to  be  imniaterial.  They  are  domiciled  and 
are  contracting  in  Cape  Colony,  and  by  the  law  of  that  colony,  as  it 
""seems" to  me,  the  validity  or  invalidity  of  such  contract  must  be  detej>- 
rainecL  It  was  urged  upon  us  that  this  conclusion  would  occasion  great 
inconvenience  to  insurance  companies.  But  I  cannot  see  that  much 
greater  difficult}-  would  arise  in  ascertaining  whether  an  assignment 
was  good  according  to  foreign  law  than  in  the  ordinary  case  of  an  as- 
signment under  English  law.  No  doubt  people  are  theoreticall}-  bound 
to  know  the  law  of  their  country-,  but  in  point  of  fact  in  man}'  cases 
the}'  do  not,  and  there  might  often  be  difficulties  in  ascertaining  whetlier 
an  alleged  assignment  according  to  English  law  had  been  validly'  effected. 
I  do  not  think  that  any  additional  difficulty  occasioned  by  the  assignment 
being  governed  b}'  foreign  law  is  of  so  much  moment  as  was  suggested. 
We  were  pressed  with  the  authority'  of  the  case  of  Lebel  r.  Tucker,  Law 
Rep.  3  Q.  B.  77,  but  the  decision  there  had  relation  to  a  bill  of 
exchange,  and  I  do  not  think  that  case  is  analogous  to  the  present. 
It  seems  to  me  that  the  question  which  really  arises  here  is  one  of 
the  validity  of  a  contract  which  is  purely  foreign,  though  such  contract 
has  relation  to  a  chose  in  action  which  possibly  arises  upon  an  English 
contract.  For  these  reasons  I  think  our  judgment  must  be  for  the 
defendants.^ 


WILLIAMS   V.  COLONIAL   BANK. 

Court  of  Appeal.     1888. 

[Reported  38  Chancerij  Division,  388.] 

Cotton,  L.  J.^  These  ai-e  two  appeals,  one  in  each  action.  Each 
action  was  brought  by  the  executors  of  the  late  Mr.  Williams,  one 
against  the  Colonial  Bank,  and  the  other  against  the  Chartered  Bank 
of  Australia.  Each  action  was  to  prevent  the  defendant  bank  from 
dealing  with  and  claiming  as  its  own  certain  shares  in  an  American 
railway  company,  the  New  York  Central  and  Hudson  River  Railroad 
Company. 

Mr.  Williams  at  the  time  of  his  death  was  the  owner  of  1210  shares 
in  that  compan}*,  which  were  standing  in  his  name,  and  his  executors 

1  Ace.  Miller  v.  Campbell,  140  N.  Y.  457,  35  N.  E.  65L  But  see  Brown's  Appeal, 
125  Pa.  303,  17  AtL  419.  — Ed. 

-  Parts  of  the  opinions  given  and  the  concurring  opinion  of  Bowen,  L.  J.,  are 
omitted.  —  Ed. 


528  WILLIAMS    V.    COLONIAL    BANK.  [CHAP.  X: 

shortly  after  his  death  desired  that  those  shares  should  be  transferred 
from  the  name  of  the  testator  into  their  own  names  in  the  books  of  the 
company.     Those  shares,  in  parcels  of  ten,  were  represented  by  cer- 
tificates, and  the  executors  sent  those  certificates  to  Messrs.  Tliomas, 
who   were  brokers  in    London,   lor  the   purpose  of  their  getting  the 
shares  transferred  into  the  names  of  the  executors.     At  first  they  did 
not  sign  the  power  of  attorney  on  the  back  of  the  certificates,  the  cer- 
tificates were  sent  back  to  them,  and  the  two  executors  who  had  then 
proved  signed  the  power  of  attorney  on  the  back  of  the  certificates, 
leaving  it  in  blank,  not  naming  any  attorney  nor  filling  in  the  name  of 
an}-  one  as  the  person  to  whom  the  shares  were  to  be  transferred.    The 
shares  were  not  transferred  into   the  names  of  the  executors,  and  a 
member  of  the  firm  of  brokers  used  the  certificates  for  his  own  pur- 
poses.   At  first  he  deposited  the  whole  of  them  with  the  Colonial  Bank, 
as  a  security  for  money  due  to  them  from   his  firm.     In  the  year  1883, 
two  years  and  a  half  after  the  certificates  had  been  signed  and  left  with 
the  brokers,  the  brokers  got  some  of  these  certificates  back  from  the 
Colonial  Bank,  and  the  same  member  of  the  firm  deposited  them  for  an 
advance  with  the  Chartered  Bank  of  Australia.     In  1884  the  firm  be- 
came bankrupt,  and  inquiries  were  made  by  the  executors  as  to  what 
had  become  of  their  certificates  which  they  had  left  with  the  firm  up  to 
that  time,  and  apparently  without  inquiry,  except  an  inquiry  made  in 
December,  1882,  when  the  fraudulent  member  of  the  firm  told  them 
that  the  certificates  were  quite    safe  in  America.     They  found   that 
these  certificates  were  not  in  the  possession  of  the  brokers,  but  of  the 
banks,   and  the  banks  claimed  to  be  entitled  to   them  according  to 
American    law.      The  plaintiffs  brought  their  -actions  to  assert  their 
title  to  the  shares.     At  the  time  when  the  actions  were  commenced 
the  shares  were  still  standing  in  the  name  of  the  testator,  and  the  cer- 
tificates were   in  the  same    state  as  when  handed  to  Thomas  &  Co. 
Mr.   Justice  Kekewich   decided  in    favor  of  the  defendants,  and  dis- 
missed both  actions.      The  question  before  us  is,  was  he  right  in  so 
deciding? 

I  will  first  say  a  few  words  as  to  the  nature  of  these  certificates.  On 
the  face  of  them  each  is  a  certificate  that  Mr.  Williams  was  entitled  to 
ten  shares  of  Si 00  each  in  tlie  capital  stock  of  the  railroad  company, 
transferable  in  person  or  by  attorney  in  the  books  of  the  company 
only  on  the  surrender  and  cancellation  of  this  certificate  by  an  indorse- 
ment thereof  hereon  in  the  form  and  manner  prescribed  by  the  regu- 
lations of  the  company.  Then  on  the  back  there  was  this:  [His 
Lordship  read  the  indorsement.]  The  two  executors  who  had  proved 
signed  these  indorsements,  leaving  the  names  of  the  transferee  and  of 
the  attorney  in  blank.  The  banks  contend  that,  according  to  Ameri- 
can law,  and  by  the  delivery  of  these  certificates  with  signed  transfers 
upon  them,  they  became  entitled  l^oth  at  law  and  in  equity  to  the  shares 
which  are  represented  in  the  certificates  as  belonging  to  the  testator ; 
and  that  as  the  means  were  given  to  them  of  re(iuiring  a  transfer  by 


SECT.  VI,]  WILLIAMS    V.    COLONIAL    BANK.  529 

the  company  of  the  shares  into  the  name  of  the  transferee,  though  as 
against  the  company  they  cannot  be  considered  as  having  tlie  rights  of 
shareholders  till  their  names  are  entered  in  the  books  of  the  company, 
yet  as  between  transferor  and  transferee  they  have  both  the  legal  and 
equitable  title.  According  to  English  law  of  course  they  would  have 
no  legal  title.  They  would  have  a  mere  inchoate  title,  which,  according 
to  English  law  would  not  enable  the  transferees  to  hold  the  shares  as 
against  the  executors  who  are  the  legal  owners,  but  it  appears  that 
according  to  American  law  the  transferee  has  not  only  an  equitable 
title  but  a  legal  title  to  the  shares.  .   .  . 

Now_tbe  question  here  whether  Thomas  &  Co.  gave  the  banks  a  good 
title  to  the  certificates  depeiids  on  transactions  in  England,  and  must_ 
be   decided  by  the  law  of  England,  and  not  by  the  law  of  America. 
The  law  of  America,  in  my  opinion,  is  property  referred  to  for  the  pur- 
pose of  deciding  what  would  be  the  effect  of  a  valid  effectual  transfer 


of  the  certificates  on  the  title  to  shares  in  an  American  compan}-,  but_ 
jwhether  Thomas  &  Co.  transferred  to  the  banks  a  good  title  to  the  cer- 
tificates depends  on  transactions  in  England,  and  in  no  way  depends 
on  thejaw  of  America.  So  also  the  question  whether  the  plaintiffs 
"^Tiave  been  estopped  by  any  act  of  theirs  from  questioning  the  title  of. 
■"the'  transferees  of  Thomas  &  Co.  must  be  a  question  of  English 
law.  .  .  . 

LiNDLEY,  L.  J.  I  am  of  the  same  opinion,  and  were  it  not  that  all 
cases  of  this  kind  are  of  the  greatest  importance,  I  do  not  know  that  I 
should  consider  it  necessar}*  to  say  anything,  but  when  we  have  to  de- 
cide which  of  two  innocent  people  is  to  suffer  from  the  fraud  of  a  third 
it  is  necessary  to  be  xevy  careful  and  to  take  great  pains  to  assure  our- 
selves that  the  party  against  whom  we  decide  is,  according  to  law,  in 
the  wrong, 

First  of  all,  let  me  dispose  of  the  questions  as  to  American  law.  As 
I  understand  the  evidence  given  by  the  American  lawyers,  if  this  trans- 
action had  taken  place  in  America  the  banks  would  have  got  a  good 
title  to  these  shares,  subject  possibly  to  the  question  about  the  docu- 
ments not  being  jjroperl}^  attested.  I  doubt  ver}'  much  whether  the 
American  lawyers  would  have  attached  much  importance  to  that,  and 
I  shall  assume  throughout  my  judgment  that  if  this  transaction  had 
taken  place  in  America  the  banks  would  have  succeeded.  Now,  the 
American  law  is  important  up  to  a  certain  point,  but  not  be3-ond  that 
point.  We  must  look  to  the  American  law  for  the  purpose  of  under- 
standing the  constitution  of  the  railway  compan}-  and  the  proper  mode 
of  becoming  a  shareholder  in  it.  Moreover,  it  ma}*  be  that  the  conse- 
quences of  having  acquired  a  title  to  the  certificate  may  depend  on 
American  law,  but  the  question  how  a  title  is  to  be  acquired  to  a  cer- 
tificate by  a  transaction  in  this  countr}'  does  not  depend  on  American 
law  at  all.  One  question,  and  to  m}'  mind  the  main  question,  resolves 
itself  into  this,  —  Who  is  entitled  to  these  certificates  ?  Now  the  cer- 
tificates have  been  dealt  with  by  the  executors  in  England,  and  the 

34 


530  JACKSON    V.   TIERXAN.  [CHAP.  X. 

certificates  are  chattels,  and  when  we  are  considering  who  is  entitled 
to  a  chattel  bought  or  sold  or  pledged  in  England,  it  is  English  law 
and  not  American  law  that  is  to  govern  the  case.^  .  .  . 


JACKSON   V.  TIERNAN. 
Supreme  Court  of  Louisiana.     1840. 

[Reported  15  Louisiana,  485.] 

Martin,  J.^  This  is  an  action  to  recover  the  sum  of  two  thousand 
four  hundred  dollars,  with  six  per  cent  interest  per  annum,  according  to 
the  laws  of  Maryland,  on  an  assignment,  for  a  valuable  consideration, 
hy  one  Thomas  H.  Fletcher,  to  the  plaintiff  of  this  sum,  to  be  paid  by 
the  defendants,  from  so  much  of  the  proceeds  of  a  shipment  of  tobacco 
made  to  them  by  Fletcher,  who  was  indebted  to  the  plaintiff.  The 
latter  took  this  assignment  without  an}-  other  security',  against  a 
protested  bill  of  exchange,  for  the  same  amount,  on  being  shown 
tlie  receipts  of  the  agent  of  tlie  defendants,  that  Fletcher  owed  them 
nothing,  and  that  the  consignment  of  tobacco  had  actualh'  been  made. 
The  assignment  was  made  on  the  21st  of  May,  1819,  at  Nashville,  and 
the  defendants  resided  in  Baltimore.  .  .  . 

The  counsel  for  the  plaintiff  has  shown  that  although  the  assignment 
of  a  debt  would  be  disregarded  l)y,  or  ratlier  would  not  be  enforced  in 
the  common  law  courts  of  the  State  of  ]Maryland,  which  is  the  loc^is 
solutionis,  yd  the  assignment  even  of  a  part  of  a  debt  would  be  en- 
forced in  the  Courts  of  Chanceiy  in  that  State :  provided  the  debtor 
assented  thereto;  or  an  obligation,  resulting  from  the  assignment  of 
a  part  of  the  debt  ma}'  be  fairly  implied  from  the  custom  of  trade,  or 
the  course  of  business  between  the  parties,  as  a  part  of  their  contract. 
As,  for  example,  the  deposit  of  mone\-  in  a  bank  ;  the  proceeds  of  a 
crop  sent  by  a  planter  to  his  commission  merchant  for  sale  ;  or  those 
of  a  shipment  of  produce  to  a  consignee  or  factor  in  Baltimore,  Liver- 
pool, or  Havre,  which  is  the  present  case.  See  the  case  of  Poydras  v. 
Delamare  et  al.,  13  La.  Rep.  98  ;  Mandeville  v.  Welch,  5  Wheat.  277. 
See  also  2  Story's  Eq.  Jur.  §  1044;  3  Swanst.  Rep.  393;  Tiernan  v. 
Jackson,  5  Pet.  598. 

The  plaintiff  had,  therefore,  an  equitable  right,  on  this  assignment, 
in  the  State  of  Maryland.  The  courts  of  this  State  are  bound  to  en- 
force equitable  rights.  These  rights  are  to  be  tested  by  the  lex  loci 
contractus,  though  tlie  remedy  here  must  be  sought  according  to  our 
laws,  to  wit,  the  lex  fori. 

1  vSee  Masnry  v.  Arkansas  Xat.  Batik,  87  Fed.  3%\,anlt,  p.  181.  —  tl>. 
3  Part  of  the  opiuiou  ouly  is  giveu.  —  Ei>. 


SECT.  VH.j         JACOBS  V.    CREDIT  LYONNAIS.  531 


SECTION    VII. 

PERFORMANCE. 


JACOBS   V.    CREDIT   LYONNAIS. 

Court  of  Appeal.     1884. 

[Reported  12  Queen's  Bench  Division,  589.] 

BowEN,  L.  J.  The  plaintiffs  in  this  case  are  esparto  merchants 
carrying  on  business  in  the  c\%y  of  London,  and  the  defendants  are 
a  banking  firm  also  carrying  on  business  in  the  cit}'. 

By  a  contract  made  in  London  on  the  6th  of  October,  1880,  the  de- 
fendants agreed  to  sell  to  the  plaintiffs  20,000  tons  of  Algerian  esparto, 
to  be  shipped  from  Algeria  during  the  year  1881  by  monthly  deliveries 
on  board  ships  or  steamers  to  be  provided  by  the  plaintiffs,  payment 
to  be  made  by  cash  on  arrival  of  the  ship  or  steamer  at  her  port  of 
destination.  The  defendants  delivered  a  portion  of  the  esparto  under 
the  contract,  but  failed  to  deliver  the  remainder;  and  this  action  was 
brought  by  the  plaintiffs  for  its  non-delivery.  The  defendants  in  their 
statement  of  defence  admitted  the  non-delivery  complained  of,  but 
alleged  that  the  insurrection  in  Algeria  and  the  militarj'  operations 
connected  with  it  had  rendered  the  performance  of  the  contract  impos- 
sible ;  and  that  by  the  French  Civil  Code,  which  prevails  throughout 
Algeria,  force  majeure  is  an  excuse  for  non-performance.  The  plain- 
tiffs demurred  to  this  defence  on  the  ground  that  the  contracts  were 
governed  by  English  law  and  not  by  the  law  of  Algeria,  and  further 
alleged  that  the  defendants  or  their  agents  could  have  procured  and 
shipped  esparto  from  other  parts  of  Algeria  where /brce  majeure  did 
not  exist.  The  defendants  to  the  latter  allegation  rejoined  that  the 
insurrection  and  military  operations  rendered  it  impossible  to  transport 
such  esparto  as  last  mentioned  to  the  place  fixed  in  the  contract  for 
approval  by  the  plaintiffs  of  its  quality  before  shipment,  or  to  transport 
the  same  to  the  place  fixed  in  the  contract  for  shipment.  To  this 
rejoinder  there  was  a  further  demui'rer  upon  similar  grounds;  .;.The 
Queen's  Bench  Division  having  given  judgment  upon  both  demurrers 
for  the  plaintiffs,  the  case  now  came  before  us  upon  appeal.,; 

The  question  which  we  have  in  substance  to  consider  is,  whether 
aon -performance  of  their  agreement  by  the  defendants  can  be  excused  on 
the  ground  that  military  operations  in  Algeria  and  the  Algerian  insurrec- 
tion had  rendered  its  performance  impo«sible,  and  that  such  an  excuse 
would  have  been  recognized  by  the  French  Civil  Code  which  prevails 
in  Algeria,  in  conformity  with  the  following  section  as  translated  from 


532  JACOBS    V.    CK^DIT    LYONNAIS.  [CHAP.  X. 

the  French  :  "  There  is  no  ground  for  any  damages  when  by  means  of 
a  superior  force  or  an  accident  the  obligor  has  been  prevented  from 
giving  or  doing  that  which  he  was  bound  to  give  or  do,  or  has  done 
that  which   he  was   not  bound  to  do."     The  first  matter  we  have   to 
determine  is,  whether  this  contract  is  to  be  construed   according  to 
English  law  or  according  to  French.     To  decide  this  point  we  must 
turn  to  the  contract  itself,  for  it  is  open  in  all  cases  for  parties  to  make 
such  agreement  as  they  please  as  to  incorporating  the  provisions  of  any 
foreign  law  with  their  contracts.     What  is  to  be  the  law  by  which  a 
contract,  or  any  part  of  it,  is  to  be  governed  or  applied,  must  be  always 
a  matter  of  construction  of  the  contract  itself  as  read  by  the  light  of 
the  subject-matter   and   of    the    surrounding   circumstances.     Certain 
presumptions  or  rules  in  this  respect  have  been  laid  down  by  juridical 
writers  of  different  countries  and  accepted  by  the  courts,  based  upon 
common  sense,   upon  business  convenience,  and  upon   the  comity  of 
nations  ;  but  tiiese  are  only  presumptions  ox  prima  facie  rules  that  are 
capable  of  being  displaced,  wherever  the  clear  intention  of  the  parties 
can  be  gathered  from  the  document  itself  and  from  the  nature  of  the 
transaction.     The  broad  rule  is  that  the  law  of  a  country  where  a  con- 
tract is  made  presumably  governs  the  nature,  the  obligation  and  the 
interpretation  of  it,  unless   the   contrary  appears   to   be  the  express 
intention  of  the  parties.     "  The  general  rule,"  says  Lord  Mansfield, 
"  established  ex  comitate  et  jure  (jentium  is  that  the  place  where  the 
contract  is  made,  and  not  where  the  action  is  brought,  is  to  be  con- 
sidered in  expounding  and  enforcing  the  contract.    But  this  rule  admits 
of  an  exception  where  the  parties  at  the  time  of  making  the  contract 
had  a  view  to  a  different  kingdom."     Robinson  v.  Bland,  1  W.  Bl.  258 
(see  Peninsular  and  Oriental  Steam  Navigation  Co.  v.  Shand,  3  Moo. 
P.  C.  (n.  s.)  291).     This   principle   was  explained   by  the  Exchequer 
Chamber  in  the  case  of  Lloyd  r.  Guibert,  Law  Rep.  1  Q.  B.  122,  as 
follows  :   "  It  is  generallv_agrcecl   that  th£-  law  of  the  place  where  thg 
contTaciJL£2iaiieas._^*w,^^^^^c^ 

£»Ught.tq  be  presumed  to  have  adopted  as  the^footingjjponwhich  they 
d^t,  and  that  such  law  ought  therefore  to'prevaU  in~the~absenc^  of 
circumstances  indicating  a  different  intention,  as^  fOTTiisTance,  that  the 
contract  is  to  be  entirely  performed  elsewhere,  or  that  the  subject-matter 
is  immovable  property  situate  in  another  country,  and  so  forth  ;  which 
latter,  though  sometimes  treated  as  distinct  rules,  appear  more  properly 
to  be  classed  as  exceptions  to  the  more  general  one,  by  reason  of  the 
circumstances  indicating  an  intention  to  be  bound  by  a  law  different 
from  that  of  the  place  where  the  contract  is  made  ;  which  intention  is 
inferred  from  the  subject-matter  and  from  the  surrounding  circumstances 
so  far  as  they  are  relevant  to  construe  and  determine  the?  character  of 
the  contract."  It  is  obvious,  however,  that  the  subject-matter  of  each 
contract  must  be  looked  at  as  ^ell  as  the  residence  of  the  contracting 
parties  or  the  place  where  the  contract  is  made.  The  place  of  performance 
is  necessarily  in  many  cases  the  place  where  the  obligations  of  the  contract 


SECT.  VII.]  JACOBS    V.    CREDIT    LYONNAIS.  533 

will  have  to  be  enforced,  and  hence,  as  well  as  for  other  reasons,  has 
been  introduced  another  canon  of  construction,  to  the  effect  that  the 
law  of  the  place  of  fulfilment  of  a  contract  determines  its  obligations. 
But  this  maxim,  as  well  as  the  former,  must  of  course  give  way  to  any  in- 
ference that  can  legitimately  be  drawn  from  the  character  of  the  contract 
and  the  nature  of  the  transaction.  In  most  cases,  no  doubt,  where  a 
contract  has  to  be  wholly  performed  abroad,  the  reasonable  presump- 
tion may  be  that  it  is  intended  to  be  a  foreign  contract  determined  by 
foreign  law  ;  but  this  prima  facie  view  is  in  its  turn  capable  of  being 
rebutted  by  the  expressed  or  implied  intention  of  the  parties  as  deduced 
from  other  circumstances.  A^nillLJLlIllLl''^  ^'"^'^  ^'1"""  ^O"*"''^^^  ^"^  partly — 
to  be  perfomiecUn_one_place  and  parth'  in  another.  In  sucha^cas^Jhe — 
only^ertain  gujde^is  to  be  found  in  applying  sound  ideas  of  business, — 
convenience,  and  sense  to  the  language  of  the  contract  itself,  with  a 
view  to  discovering  from  it  tlie  true  intention  of  the  parties.  Even  in 
respect  of  any  performance  that  is  to  take  place  abroad,  the  parties  may 
still  have  desired  that  their  liabilities  and  obligations  shall  be  governed 
by  English  law  ;  or  it  may  be  that  they  have  intended  to  incorporate 
the  foreign  law  to  regulate  the  method  and  manner  of  performance 
abroad,  without  altering  any  of  the  incidents  which  attach  to  the 
contract  according  to  English  law.  Stereotyped  rules  laid  down  by 
juridical  writers  cannot,  therefore,  be  accepted  as  infallible  canons  of 
interpretation  in  these  days,  when  commercial  transactions  have  altered 
in  character  and  increased  in  complexity  ;  and  there  can  be  no  hard- 
and-fast  rule  by  which  to  construe  the  multiform  commercial  agreements 
with  which  in  modern  times  we  have  to  deal.  In  the  present  case  the 
contract  was  made  in  London  between  merchants  carrying  on  their 
business  in  the  city  of  London,  and  payment  was  to  be  made  in  London. 
Presumal)ly,  therefore,  we  should  infer  that  this  was  an  English  contract 
and  intended  to  be  governed  by  English  law ;  but  it  still  remains  to  be 
considered  whether  anything  in  the  contract  itself  or  the  nature  of  its 
stipulations  displaces  this  prima  facie  view  either  wholly  or  in  part. 
Now  it  cannot  be  contended  that  the  parties  have  in  express  terms 
provided  that  an}'  portion  of  this  contract  is  to  be  construed  or  applied 
otherwise  than  according  to  English  law  ;  but  it  was  suggested  by  the 
appellants  that  such  an  intention  ought  to  be  inferred  from  certain 
provisions  as  to  the  collection  of  the  esparto  in  Algeria  and  as  to 
its  shipment  thence.  The  esparto  was  to  be  shipped  by  the  Compagnie 
Franco-Algerienne,  or  their  agents,  from  Arzew,  or  any  other  port  with 
safe  anchorage,  by  sailing  ships  or  steamers  during  thej'ear  1881.  The 
quality  of  the  esparto  was  to  be  finally  approved  by  the  plaintiffs'  repre- 
sentatives at  the  works  of  the  Compagnie  Franco-Algerienne,  at  Ain-el- 
Hadjar,  in  Algeria,  before  being  baled,  and  no  claim  respecting  quality 
was  to  be  allowed  after  the  delivery  of  the  bales  at  Arzew.  The  neces- 
sary ships  or  steamers  were  to  be  supplied  by  the  plaintiffs,  otherwise 
the  esparto  was  to  be  warehoused  by  the  Compagnie  Franco-Algerienne 
at  the  plaintiffs'  peril  and  risk.     Insurance  was  to  be  effected  by  the 


534  JACOBS   V.    CREDIT    LYONNAIS.  [CHAP.  X 

defendants  for  the  invoice  amount  at  selling  price,  and  2  per  cent  over 
in  the  United  Kingdom  on  the  usual  conditions.  Payment  to  be  made 
by  cash  on  arrival  of  the  ship  or  steamer  at  port  of  destination.  Finally 
the  contract  contained  an  arbitration  clause,  with  a  provision  that  it 
should  be  made  a  rule  of  the  High  Court  of  Judicature  on  the  applica- 
tion of  either  of  the  contracting  parties. 

Tliere  is  absolutely  nothing  in  any  part  of  this  contract,  as  it  appears 
to  us,  which  can  amount  to~an  indication  that  it  is  in  any  way  or  in  any 
part  of  it  to  be  treated  as  anything  except  _an  English  contract,  unless 
it  be  the  mere  fact_that„ihe  ^sparto  is  to  be  collected  in  ATgeria^  ap- 
^pi^SvecTaFtlie^orks  of  a  French  company  in  Algeria  before  shipment, 
and  to  be  delivered  on  board  ships  of  the  plaintiffs  at  an  Algerian  port, 
after  which  it  is  to  be  at  plaintiffs'  risk.  To  hold  that  on  this  ground 
only  the  ordinary-  presumption  is  to  be  displaced,  and  that  the  parties 
must  have  meant  some  law  other  than  the  English  to  govern  the  con- 
struction of  any  portion  of  the  contract  as  regards  the  liabilities  of  the 
contracting  parties,  would  be  to  introduce  a  serious  element  of  uncer- 
tainty into  mercantile  contracts.  The  mere  fact  that  a  contract  of  this 
description,  —  made  in  England  between  English  resident  houses,  and 
under  which  payment  is  to  be  made  in  England  upon  delivery  of  goods 
from  up  country  in  an  Algerian  port,  —  is  partly  to  be  performed  in 
Algeria,  does  not  put  an  end  to  the  inference  that  the  contract  remains 
an  English  contract  between  English  merchants,  to  be  construed  ac- 
cording to  English  law,  and  with  all  the  incidents  which  English  law 
attaches  to  the  non-performance  of  such  contracts. 

Now  one  of  the  incidents  which  the  English  law  attaches  to  a  contract 
is  that  (except  in  certain  excepted  cases  as  that  of  common  carriers 
and  bailees,  of  which  this  is  not  one),  a  person  who  expressly  contracts 
absolutely  to  do  a  thing  not  naturally  impossible,  is  not  excused  for 
non-performance  because  of  being  prevented  by  vis  major. 

"  The  rule  laid  down  in  the  case  of  Paradine  v.  Jane,  Aleyn,  27,  has 
often,"  says  Lord  Ellenborough,  "  been  recognized  in  courts  of  law  as 
a  sound  one  ;  that  wiie'n  the  party  by  his  own  contract  creates  a  duty 
or  charge  upon  himself,  he  is  bound  to  make  it  good,  if  he  may,  not- 
withstanding any  accident  by  inevitable  necessity  ;  because  he  might 
have  provided  against  it  by  his  contract."  Atkinson  i\  Ritchie,  10  East, 
530.  at  p.  53.3.  See  also  Spcnce  r.  Chodwick,  10  Q.  B.  530  ;  Lloyd  r. 
Guibert,  Law  Rep.  1  Q.  B.  121.  If  inevitable  necessity  occurring  in 
this  country  would  not  excuse  non-performance,  why  should  non-per- 
formance be  excused  on  account  of  the  inevitable  necessity  arising 
abroad  ?  So  to  hold  would  be  to  alter  the  liability  which  PZnglish  law 
attaches  to  contracts,  and  would,  in  the  absence  of  an  expressed  or 
implied  intention  to  that  effect,  be  contrary  to  authority  as  well  as 
principle,  see  Barker  v.  Hodgson,  3  M.  &  S.  267  ;  Sjoerds  v.  Luscombe, 
IG  East,  201.  The  Solicitor-General,  in  his  argument,  admitted  that 
he  was  driven  to  contend  that  the  law  of  the  place  of  fulfilment  not 
merely  governed  the  mode  of  performance  of  this  particular  coutract. 


SECT.  VII.]  JACOBS   V.    CREDIT   LYONNAIS.  535 

but  governed  also  the  obligations  in  respect  of  performance,  and  the 
liabilities  in  respect  of  non-performance  of  it.  It  seems  to  us,  however, 
that  the  true  principles  of  construction  to  be  appUed  do  not  admit  of 
this  interpretation  of  this  contract.  To  what  extent  foreign  law  is  to 
be  incorporated  in  an}-  contract  must  be,  as  we  have  said,  a  question  of 
construction  of  the  contract  itself  read  by  the  light  of  the  surrounding 
circumstances.  If  a  contract  made  in  England  by  English  subjects  or 
residents,  and  upon  which  payment  is  to  be  made  in  England,  has  to  be 
performed  in  part  abroad,  it  might  not  be  unreasonable  to  assume  that 
the  mode  in  which  any  part  of  it  has  to  be  performed  abroad  was  in- 
tended to  be  in  accordance  with  the  law  of  the  foreign  country,  and  to 
construe  the  contract  as  incorporating  silently  to  that  extent  all  pro- 
visions of  a  foreign  law  which  would  regulate  the  method  of  performance, 
and  which  were  not  inconsistent  with  the  English  contract.  But  it 
cannot  be  gathered  from  such  a  contract  as  the  present  that  the  parties 
desired  to  go  further  and  to  discharge  the  defendants  from  performance 
whenever  circumstances  arose  which  would,  according  to  foreign  law, 
excuse  them.  The  contract  has  absolutely  provided  that  delivery  of 
the  esparto  shall  be  duly  made,  not  that  the  bargain  as  to  such  delivery 
need  only  be  observed  when  the  foreign  law  would  insist  upon  such  ob- 
servance. The  contract  being  an  English  contract,  only  such  portions 
of  the  French  Civil  Code  can  be  applied  to  its  provisions  as  to  per- 
formance in  Algeria  as  are  not  inconsistent  with  the  express  language 
of  the  contract  as  interpreted  according  to  English  law.  If  the  parties 
had  wished,  in  addition  to  this,  to  incorporate  a  provision  of  French 
law  which  in  the  event  of  vis  major  would  operate  to  excuse  the  con- 
tracting parties  for  non-performance,  and  thus  to  vary  the  natural  con- 
struction of  the  instrument  according  to  P^nglish  law,  they  should  have 
done  so  in  express  terms.  Read  by  English  law  the  contract  is  not 
susceptible  of  such  an  interpretation,  and  there  is  nothing  to  show  that 
in  this  respect  the  parties  desired  the  contract  to  be  governed  by  the 
French. 

For  these  reasons  we  are  of  opinion  that  the  judgment  of  the  court 
below  was  right  and  must  be  affirmed  with  costs. 

Judgment  affirmed. 


)36  TAKBOX    V.   CHILDS.  [CHAP.  X. 


TARBOX   V.    CHILDS. 

Supreme  Judicial  Court  of  Massachusetts.     1896. 

[Reported  165  Massachusetts,  408.] 

Contract,  to  recover  a  balance  of  the  purchase  price  for  horses  sold 
by  the  plaintiff  to  the  defendants.  Answer,  payment.  Trial  in  the 
Superior  Court,  without  a  jury,  before  Blodgett,  J.,  who  reported  the 
case  for  the  determination  of  this  court,  in  substance  as  follows. 

The  following  facts  were  agreed.  In  May,  1893,  the  plaintifT,  at 
Fredonia,  in  the  State  of  New  York,  sold  to  the  defendant  Childs  cer- 
tain horses,  and  promised  to  deliver  the  horses  at  Fredonia.  The 
defendant  agreed  to  pay  to  the  plaintiff  one  thousand  dollars  in  cash 
at  Fredonia,  upon  the  delivery  of  the  horses.  The  plaintiff  forthwith 
delivered  the  horses  to  the  defendant  at  Fredonia,  but  the  defendant 
did  not,  at  the  time  of  delivery,  pay  anything  towards  the  purchase 
price  agreed  upon.  A  few  days  later,  the  defendant  sent  bj'  mail  from 
Boston  to  the  plaintiff  at  Fredonia  $675  in  cash,  to  be  applied  on  the 
purchase  price.  A  few  months  later,  the  defendant  sent  to  the  plain- 
tiff by  mail  from  Boston  to  Fredonia  his  promissory  note  for  $325, 
pa3'able  at  Boston  in  three  months  from  date. 

There  was  no  agreement  or  understanding  at  any  time  between  the 
parties  as  to  whether  that  note  or  the  renewal  notes  hereinafter  men- 
tioned should  be  accepted  b}'  the  plaintiff  in  payment  of  the  balance 
due  or  not,  except  such,  if  any,  as  can  be  implied  from  the  facts  herein 
set  forth.  When  the  first  note  became  due,  the  defendant  renewed  it 
by  another,  which  was  the  same  as  the  first  in  all  terms  except  the  date. 
This  renewal  note  was  also  sent  by  mail  from  Boston  to  Fredonia,  and 
with  it  was  sent  a  cash  paj'ment  of  the  interest  due  on  the  first  note  to 
the  date  of  maturity  thereof.  The  plaintiff  returned  the  first  note,  on 
request  of  the  defendant,  and  retained  the  second  note  and  the  payment 
of  interest. 

No  part  of  the  principal  thereof  has  ever  been  paid,  nor  any  interest 
thereon.  The  plaintiff  brought  into  court  and  tendered  to  the  defend- 
ant the  protested  note,  which  tender  was  refused. 

The  agreed  facts  were  the  only  evidence  at  the  trial,  with  evidence 
of  the  law  of  the  State  of  New  York  so  far  as  the  same  was  applicable 
to  those  facts. 

Tlic  defendant  Childs,  who  alone  defended,  objected  to  the  admission 
of  evidence  of  the  law  of  New  York,  and  requested  the  judge  to  rule 
that  the  effect  of  the  delivery  and  receipt  of  the  notes  set  forth  in  the 
agreed  facts  was  to  be  determined  solely  b}'  the  law  of  this  Common- 
wealth ;   and  further  requested  the  judge  to  rule  as  follows  :  — • 

"  1.  The  question  whetlier  tlie  first  note  is  to  be  presumed  to  have 
been  given  in  payment  of  the  pre-existing  debt  or  not  is  a  question  to 
be  determinea  according:  to  the  laws  of  Massachusetts. 


SECT.  VII.J  TARBOX   V.    CHILDS.  537 

"  2.  Upon  the  agreed  facts  and  the  pleadings,  it  is  to  be  presumed 
that  the  first  note  was  given  by  the  defendant  and  received  by  the 
plaintiff  in  payment  and  satisfaction  of  the  pre-existing  debt  due  the 
plaintiff  for  the  purchase  price  of  the  horses. 

"  3.    Upon  all  the  evidence,  the  plaintiff  is  not  entitled  to  recover. 

"4.  Upon  all  the  evidence,  it  is  to  be  presumed  that  the  second 
note  was  given  b}'  the  defendant  and  received  by  the  plaintiff"  in  pay- 
ment of  the  first  note." 

The  judge  refused  to  give  any  of  the  rulings  requested,  and  found 
for  the  plaintiff.^ 

Allen,  J.  The  defendant  Childs  contends  that  the  notes  given  to 
the  plaintiff  were  Massachusetts  contracts,  and  that  they  should  be 
interpreted  and  have  effect  according  to  the  law  of  Massachusetts. 
That  would  be  so  if  a  question  arose  in  an  action  upon  the  notes,  or 
either  of  them.  Shoe  &  Leather  National  Bank  v.  Wood,  142  Mass. 
663.  But  the  present  action  is  brought  on  the  original  contract,  and 
not  on  either  of  the  notes.  The  plaintiff  seeks  to  recover  what  the 
defendants  agreed  to  pay  him  as  the  price  of  the  horses  sold.  The 
defendants'  promise  was  made  in  New  York,  and  was  to  be  performed 
there.  They  were  bound  to  make  payment  in  that  State,  and  the  ques- 
tion is  whether  they  have  done  so.  They  paid  a  part  in  cash,  and  for 
the  residue  they  sent  by  mail  from  Massachusetts  to  the  plaintiff  in 
New  York  their  note  made  in  Massachusetts  and  payable  here.  By 
the  law  of  Massachusetts  a  negotiable  note  taken  for  an  antecedent 
debt  is  deemed  to  be  a  payment,  unless  there  is  something  to  show  a 
contrary  intention.  The  rule  in  New  York  is  the  other  way.  The 
plaintiff  in  New  York  was  not  affected  by  the  rule  which  prevails  here. 
The  defendant's  promise  to  pay  him  in  that  State  remained  unper- 
formed and  undischarged,  according  to  the  law  of  that  State.  It 
makes  no  difference  that  successive  notes  were  given.  The  plaintiff 
was  to  be  paid  there,  and  he  has  not  3-et  been  paid  according  to  the 
law  of  New  York,  and  is  entitled  to  recover.  Vancleef  v.  Therasson, 
3  Pick.  12  ;  Eosseau  v.  Cull,  14  Vt.  83  ;  Winsted  Bank  v.  Webb,  39 
N.  Y.  325  ;  Olcott  v.  Rathbone,  5  Wend.  490.  Story,  Confl.  of  Laws, 
§  332.  Judgment  for  the  ^plaintiff^^ 

1  Part  of  the  statement  of  facts  is  omitted.  —  Ed. 

2  Where  a  note  is  given  in  payment  at  the  place  where  the  original  debt  was  con- 
tracted and  is  payable,  the  question  whether  it  is  to  be  taken  as  a  discharge  of  the 
original  debt  is  of" course  to  be  determined  by  the  law  of  the  place.  This  is  commonly 
said  to  be  governed  by  that  law  because  the  note  was  there  accepted  as  payment. 
Bartsch  v.  Atwater,  1  Conn.  409  ;  Thompson-Houston  Electric  Co.  v.  Palmer,  52  Minn. 
174,  53  N.  W.  1137  ;  Oilman  v.  Stevens,  63  N.  H.  342.  — Ed. 


538  GRAHAM   V.    FIRST    NATIONAL    BANK.  [CHAP.  X. 

BENNERS  V.   CLEMENS. 
Supreme  Court  of  Pennsylvania.     1868. 

[Reported  58  Perms i/lvania,  24.1 

This  was  an  amicable  action  of  assumpsit  to  December  Term,  1866, 
in  which  John  Clemens  was  plaintiff  and  Isaac  R.  Benners,  survivor  of 
the  firm  of  Isaac  R.  Benners  &  Co.,  defendant.  The  claim  was  for  a 
balance  due  b}'  defendant  on  an  invoice  of  fruit,  contracted  for  in  P^ng- 
land  and  shipped  to  defendant  to  New  York.  The  whole  amount  of 
the  shipment  was  $2,967.85,  which  was  reduced  to  $896.95  b}-  quercitron 
bark  shipped  to  plaintiff.  The  plaintiff  claimed  to  recover  this  balance 
at  gold  prices  with  interest  from  December  17th,  1863.  The  onl}'  ques- 
tion in  the  case  was  whether  it  was  to  be  paid  on  that  basis.^ 

The  verdict  was  for  $1,456.65,  the  whole  amount  of  the  plaintiffs 
claim.     The  defendant  took  a  writ  of  error. 

Thompson,  C.  J.  The  debt  sued  for  was  a  debt  contracted  in  Eng- 
land, or  rather  the  balance  of  a  debt  contracted  and  partialh- liquidated 
there  b}-  returns  in  quercitron  bark.  In  the  absence  of  any  under- 
standing to  the  contrary  the  balance  was  due  and  payable  there.  This 
being  so,  it  was  payable  in  the  legal  currenc}'  of  the  country,  denomi- 
nated pounds,  shillings,  and  pence,  and  the  representative  of  gold.  Of 
course,  as  any  payment  obtained  here  would  be  payable  in  legal  tender 
notes,  the  value  of  the  gold  in  legal  tenders,  with  interest,  would  be 
what  in  amount  the  judgment  should  be.  The  lex  loci  contractus  must 
control  in  interpreting  the  contract.  Allshouse  v.  Rarasa}-,  6  Whart. 
331  ;  Watson  v.  Brewster,  1  Ban*,  381,  and  authorities  cited  by  tlie 
defendant  in  error.  This  view  of  the  case  is  sufficient  to  affirm  the 
judgment  without  reference  to  any  question  arising  on  our  Legal  Ten- 
der Acts.  The  judgment  being  right  in  amoicnt  is  affirmed.'^ 


GRAHAM  V.  FIRST  NATIONAL  BANK 

Court  of  Appf.als,  New  York.     1881. 
[Reported  84  New  York,  39.T  ] 

Finch,  J.^  The  ownership  of  one  Juindred  and  ninety-six  shares  of 
stock,  which  stood  upon  the  books  of  the  Norfolk  Bank,  in  the  name 
of  Eliza  A.  Graham,  must  be  deemed  vested  in  her,  whether  the  pur- 
chase price  was  paid  by  her  or  by  her  husband,  and  notwithstanding 

1  Part  of  the  statement  of  facts  and  arguments  of  counsel  are  omitted.  —  Ed. 

2  Ace.  Gninwald  v.  Freese  (Cal.),  34  Pac.  73;  Comstock  v.  Smith,  20  Mich.  338; 
8  Clnnet,  447  (Brescia,  4  Nov.  78) ;  8  Clunet,  448  (Florence,  21  May,  '70)  ;  23  Clunet, 
597  (Marseilles,  25  June,  '95).  — En. 

"  Part  of  the  opiniou  only  is  given.  —  Ed. 


SECT.  VII.]  GKAIIAM    V.    FIRST    NATIONAL    BANK.  539 

the  evident  control  of  it,  for  his  own  purposes,  bv  the  latter.  No 
creditors  of  the  husband  intervene  to  affect  the  question,  and,  as  be- 
tween Mrs.  Graham  and  the  bank,  her  right  as  owner  must  be  admitted. 
The  dividends  declared  during  such  ownership  belonged  to  and  were 
payable  to  her ;  and,  assuming  for  the  present  that  her  assignment  to 
plaintiffs  was  effective  to  transfer  such  right  to  them,  there  remain  for 
discussion  onl}-  the  two  questions :  whether  the  Norfolk  Bank  did,  in 
fact,  pay  the  dividends  sued  for  to  the  husband  of  Mrs.  Graham  ;  and 
whether,  by  such  payment  to  him,  the  liability  of  the  bank  to  iier  was 
discharged.  The  referee  has  found  that  such  payments  were,  in  fact, 
made  to  James  Graham,  the  husband.  .  .  .  While  the  facts  are  not 
free  from  difficultv,  a  careful  examination  has  satisfied  us  that  there 
was  sufHcient  evidence  to  warrant  the  finding  of  the  referee,  and  to 
make  it  conclusive  on  this  appeal. 

The  question  of  law,  however,  remains,  whether  the  payment  by  the 
bank  to  James  Graliam  was  a  good  pa3'nient  to  his  wife  in  whose  name 
the  stock  stood  upon  the  books  of  the  bank.  The  Norfolk  Bank  was 
located  and  transacted  business  in  the  State  of  Virginia.  It  is  proved 
that  in  that  State  the  common  law  prevails  as  it  respects  the  relation  of 
husband  and  wife,  and  that  within  that  jurisdiction  the  husband  has  the 
absolute  right  to  reduce  to  his  own  possession,  and  use  for  his  own 
benefit,  the  personal  propert}'  of  the  wife.  The  contract  out  of  whicii 
grew  the  right  to  the  dividends  was  both  made  and  to  be  [)f  rforuied  in 
Virginia,  and  if  the  payment  by  the  Bank  of  Norfolk  to  James  Graham 
is  to  be  tested  and  measured  b}'  the  law  of  that  State,  it  is  conceded  to 
have  been  good  and  an  effective  discharge  of  the  liabilit}'  to  the  wife. 
It  is  denied,  however,  that  the  law  of  Virginia  applies,  and  it  is  argued 
that  the  law  of  Marj'land,  the  lex  domicilii^  governs  and  controls  the 
capacity  of  the  parties  to  receive  payment,  and  the  duty  of  the  bank  in 
making  it.  The  general  subject  of  a  conflict  between  the  law  of  the 
domicil  and  that  of  the  place  of  contract  has  been  fully  discussed  by 
Story  and  Wharton  in  their  respective  treatises.  Stor}'  on  Conflict  of 
Laws,  §  374  et  seq.  ;  Wharton,  §  393  et  seq.  Whatever  is  useful  in 
the  learning  of  the  continental  jurists,  or  the  decisions  of  the  English 
courts,  has  been  made  tributary'  to  conclusions  which  we  may  safely 
follow  where,  at  least,  they  are  in  harmony  with  the  ruling  of  our  own 
tribunals.  It  must,  then,  be  granted  that  movables  or  personal  prop- 
erty, by  a  fiction  of  the  law,  are  deemed  attached  to  the  person  of  the 
owner,  and  so,  present  at  his  domicil,  whatever  their  actual  situation 
may  be.  The  law  of  the  domicil,  therefore,  naturalh'  governs  their 
transfer  by  the  owner,  and  their  disposition  and  distribution  in  case 
of  his  death.  So  far  the  authorities  substantially  agree,  differing  only 
in  the  reasons  upon  which  the  rule  is  founded,  and  b}'  which  it  is  to  be 
justified.  When,  however,  the  question  passes  beyond  the  disposition 
of  the  personal  property  b}-  the  partv,  or  the  act  of  the  law,  within  the 
jurisdiction  of  the  domicil,  and  busies  itself  with  the  inherent  character 
of  the  property,  and  of  the  contracts  which  both  create  and  constitute 


540  GRAHAM    V.    FIRST    NATIONAL    BANK.  [CHAP.  X. 

it,  elements  of  discord  arise,  and  the  authorities  are  not  easily  to  be 
reconciled.  It  is  readily  seen  that  the  inherent  character  of  the  con- 
tract must  usually  be  the  product  of  the  jurisdiction  in  which  it 
originates,  and  hence  it  follows,  and  has  been  justly  held,  that  the 
construction,  nature,  and  effect  of  a  contract  are  to  be  determined  by 
the  lex  loci  contractus.  Story  on  Conflict  of  Laws,  §  321.  But  no 
such  question  is  here.  There  is  no  dispute  about  the  construction  of 
the  contract  to  pay  dividends.  All  are  agreed  upon  that.  There  is  no 
trouble  as  to  the  nature  of  the  contract  or  its  effect.  Its  validity,  and 
the  dut}'  of  pa3'ment  to  the  stockholders,  is  conceded  on  all  sides.  The 
real  question  is  over  the  performance  of  the  contract,  or  its  discharge 
by  payment ;  and  that  involves  the  capacity  of  the  husband  to  receive 
and  discharge  the  debt,  represented  by  the  dividends,  jure  Duiriti.  On 
the  one  hand,  it  is  argued  that  this  question  of  capacit\-,  of  the  rights 
and  powers  flowing  from  the  marriage  relation,  is  dependent  upon  the 
law  of  the  domicil,  and  utterly  unaff"ected  bj'  the  foreign  law,  and  the 
former  must,  therefore,  dictate  and  measure  the  authority  and  power 
of  the  husband  and  the  right  of  the  wife.  That  is,  in  general,  true  as 
between  themselves,  and  relativel}'  to  each  other.  (  It  does  not  follow 
that  it  is  true  as  between  them  and  a  debtor  in  another  State,  whose  eon- 
tract  was  made  there,  and  is  there  to  be  performed.  iSuch  a  fact  intro- 
duces a  new  element  into  the  problem.  It  would  scarcely  be  endurable 
if  a  railroad  or  insurance  compan}',  declaring  dividends  in  this  State, 
should  be  bound  to  pa\-  stockholders  in  other  States  according  to  the 
foreign  laws,  and  in  accordance  with  different  and  varying  codes.  Ob- 
serving the  evil  result,  we  must  remember  that,  in  a  case  like  the  pres^ 
enT,  it  is  a  legal  Ijction  which  attaches  the  property  to  the^domicil,  and 
the^  acJLiiaLiact  may.,be  otherwise.  Judge  Comstock,  in  Ho}!  v.  The 
Coinmissioners  of  Taxes  (23  N.  Y.  228),  well  says,  "  that  the  fiction  or 
maxim,  mohilia  personam  sequu7itur,  is  by  no  means  of  universal  ap- 
plication. Like  other  fictions,  it  has  its  special  uses.  It  may  be 
resorted  to  when  convenience  and  justice  so  recjuire.  In  other  circum- 
stances the  truth  and  not  the  fiction  affords,  as  it  plainly  ought  to 
afford,  the  rule  of  action."  And  Judge  Story  says  that  the  legal  fiction 
"yields  whenever  it  is  necessary  for  the  purposes  of  justice  that  the 
actual  situs  of  the  thing  should  be  examined,"  Conflict  of  Laws, 
§  o'jO.  And  hence  has  l)een  ver\'  stcadilv  sustained^the  general  rule 
that  a  contract  made  in  one  State,  and  to  be  performed  there,  is  gov- 
erned by  the  law  of  that  State,  and  tlie  further  rule,  which  is  a  logical 
result,  that  a  (Icfciice  or  discharge,  good  by  the  law  of  the  place  where 
tlie  contract  is  made  or  to  be  performed,  is  to  be  held,  in  most  cases, 
of  equal  valid  it}' elsewhere.  Story  on  Conflict  of  Laws,  §  331  ;  Thomp- 
son V.  Ketcham,  8  Johns.  189  ;  Bartsch  r.  Atwater,  1  Conn.  401)  ;  Smith 
V.  Smith,  2  Johns.  235;  Hicks  /•.  Brown,  12  Johns.  142;  Sherrill  v. 
Hopkins,  1  Cow.  103  ;  Peck  v.  Hibbard,  26  Vt.  702  ;  Bowen  v.  Newell, 
13  N.  Y.  290;  Cutler  v.  Wright,  22  N.  Y.  472  ;  Waldron  v.  Kitehings, 
3  Daly,  288 ;  Jewell  o.  Wright,  30  N.  Y.  259  ;  Willitts  v.  AVaite.  2b 


SECT.  VII.]  GRAHAM   V.   FIRST   NATIONAL   BANK.  541 

N.  Y.  577.  In  these  cases  the  fiction  yields  to  the  fact ;  the  situs 
attached  theoretically  to  the  person  of  the  owner,  and^  therefore,  to  his 
domicil  surrenders  to  the  actual  _situs_yNJiere^  justice  and  convenience 
demandiL  The  illustrations  are  various,  but  founded  upon  a  common 
reason  and  justification.  For  the  purpose  of  taxation  the  actual  situs 
controls,  and  the  fiction  which  carries  the  personal  property  to  the 
domicil  of  the  owner  is  disregarded.  As  to  days  of  grace  affecting  the 
maturity  of  a  contract  and  determining  when  it  becomes  due,  the  lex 
loci  is  applied.  The  defence  of  infancy  is  to  be  sustained  or  denied 
according  to  the  rule  of  the  place  of  contract  and  performance.  So, 
also,  as  to  the  disabilit}-  of  coverture,  and  the  rate  and  legality  of  in- 
terest. And  even  an  assignment,  in  invitum,  compelled  b}-  the  local 
law,  will  transfer  propert}'  in  another  State  where  suitors  in  the  courts 
of  the  latter  are  not  thereb}'  prejudiced.  These  rulings  and  others  of 
the  like  character  have  been  modified  and  moulded  in  their  application 
by  the  influence  of  varied  circumstances,  but  concur  in  the  general 
principle  upon  which  the  lex  loci  has  been  applied.  The  point  pressed 
here  is  that  while  it  controls  the  construction  and  validity  of  the  con- 
tract, it  does  not  settle  the  capacity  of  the  non-resident  parties.  But 
to  found  a  ruling  upon  such  a  test  would  involve  us  in  an  ambiguity. 
Capacity  ma}-  affect  the  power  of  transfer  and  the  direction  and  details 
of  distribution.  In  that  respect  it  is  often  shaped  and  settled  by  the 
law  of  the  domicil.  But  it  also  affects  the  validit}'  of  a  contract  and 
the  mode  and  manner  of  its  dissolution  or  discharge.  In  that  respect 
it  is  generally  governed  by  the  law  of  the  place  of  contract.  Story 
concludes,  after  a  full  and  learned  review  of  the  insuperable  difficulties 
which  attend  an  effort  to  extend  the  capacity  or  incapacity  created  b}' 
the  law  of  the  place  of  domicil  to  foreign  States,  that  the  true  rule  is 
that  "  the  capacit}',  state,  and  condition  of  persons  according  to  the 
law  of  their  domicil  will  generally  be  regarded  as  to  acts  done,  rights 
acquired,  and  contracts  made  in  the  place  of  their  domicil,  touching 
propei'ty  situate  therein,"  but  as  to  acts  done,  etc.,  elsewhere,  the  lex 
loci  contractus  will  govern  in  respect  to  capacity  and  condition.  We 
cannot  make,  therefore,  the  law  of  the  domicil  in  and  of  itself  a  solvent 
of  the  doubts  and  difficulties  likeh"  to  arise  even  as  to  questions  of 
capacit}'.  In  the  present  case  the  contract  was  made  in  Virginia  and 
to  be  performed  there.  The  dividends  were  there  declared  and  payable. 
The}'  were  paid  to  the  husband  who  could  lawfully  receive  and  appro- 
priate them,  by  the  law  of  Virginia,  to  his  own  use  and  benefit.  The 
payment  was,  therefore,  valid  and  effectual,  and  discharged  the  bank 
from  its  liability.  The  rights  of  the  wife  after  such  payment,  as  be- 
tween herself  and  her  husband  under  the  law  of  Maryland,  might  prove 
to  be  a  very  different  question.  It  is  sufficient  for  the  purposes  of  this 
case  that  the  payment,  which  the  referee  finds  was  in  fact  made  to  the 
husband,  discharged  the  liability  of  the  bank  and  furnished  a  defence 
to  the  action. 

The  judgment  should  be  affirmed,  with  costs. 

All  concur,  except  Rapallo,  J. ,  absent.  Judgment  affirmed. 


542  GIBBS   V.   SOCI^IE  INDUSTRIELLE.  [CiiAP. 


SECTION  VIIL 

DISCHARGE. 


GIBBS   V.   SOCIETE   INDUSTRIELLE. 

Court  of  Appeal.     1890. 

[Reported  25  Queen's  Bench  Division,  399.] 

Lord  Esher,  M.R.^  In  this  case  the  defendants,  a  French  company, 
entered  into  negotiations  for  the  purchase  of  copper  through  a  London 
metal-broker,  who  effected  contracts  between  them  and  the  plaintiffs 
in  England  in  the  ordinar}'  way.  He  drew  up  bought  and  sold  notes, 
by  which  the  contract  was  expressed  to  be  according  to  the  rules  of 
the  London  Metal  Exchange.  One  of  these  notes  he  sent  to  the  plain- 
tiffs, and  the  other  he  sent  to  the  defendants  ;  and  both  parties  retained 
the  notes  so  sent  to  them.  The  contracts  were  for  the  purchase  of 
copper  to  be  delivered  in  P^ngland.  It  appears  to  me  impossible  to 
den}'  that  these  were  English  contracts.  The  contracts  being  so  made, 
the  defendants  became  bound  to  accept  the  copper  contracted  to  be 
sold.  The  plaintiffs  were  always  ready  and  willing  to  deliver  the 
copper ;  but  the  defendants  were  not  readv  to  accept,  and  absolved 
the  plaintiffs  from  tendering  it.  Consequentl}-,  according  to  English 
law,  the  plaintiffs  are  entitled  to  sue  the  defendants  for  non-acceptance 
of  the  copper,  the  measure  of  damages  being  the  difference  between 
the  contract  and  market  price  at  the  time  of  the  breaches  of  contract. 
But  the  defendants  are  a  French  company  domiciled  in  and  governed 
by  the  law  of  France.  They  have  been,  b}'  a  judgment  of  the  Tribunal 
of  Commerce  of  the  Seine,  pronounced  to  be  in  judicial  liquidation.  It 
was  asserted  by  the  defendants  by  wa}'  of  defence  to  the  action  that  the 
pronouncing  of  that  judgment  by  the  French  tribunal  by  the  law  of 
France  operated  as  a  discharge  of  the  defendants  from  liabilitv  to  an 
action  on  the  contracts  ;  and  it  was  asserted  that  it  so  discharged  them 
in  more  than  one  way.  It  was  said  that  such  a  judgment  dissolved  the 
French  company,  so  that  it  no  longer  existed,  and  so  dissolved  their 
lial)ility  to  be  sued  on  the  contracts.  It  was  furtlier  said,  that  the  fact 
of  the  plaintiffs  having  by  their  agents  offered  proof  of  tlieir  claims 
before  the  French  tribunal  operated  as  a  discharge  of  the  defendants' 
liability  to  this  action.  It  was  further  said,  as  to  part  of  the  claim, 
that  by  the  law  of  France,  where  a  compan}'  is  in  liquidation  as  in  the 
present  case,  and  there  is  a  contract  for  the  acceptance  of  goods  b}' 

^  Part  of  this  opinion  only  is  given.  Coucurriug  opinions  were  delivered  by 
LiNDLEY  and  Loi-Es,  L.JJ.  — Ed. 


SECT.  VII].]  GIBBS    V.    SOCl^T^   INDUSTRIELLE.  543 

such  compaii}'  at  a  date  subsequent  to  the  judgment  of  liquidation,  the 
vendors  cannot  prove  for  damages  for  the  non-acceptance  ;  they  can 
elect  to  deliver  the  goods  to  the  liquidator  and  prove  for  the  price ; 
but,  if  the}'  do  not  so  elect  and  the  goods  are  not  delivered,  the  effect 
is  that  the  contract  is  cancelled  and  the  purchasers  discharged.  Such 
are  the  contentions  set  up  by  the  defendants  b}'  way  of  defence.  Then 
they  raise  a  further  point.  They  say  that  the  judgment  against  the 
defendants  ought  not  to  have  been  pronounced,  but  the  judge  ought  to 
have  stayed  the  proceedings  before  judgment,  or  that,  on  giving  judg- 
ment, he  ought  to  have  stayed  further  proceedings  generally.  The 
plaintiffs  contend,  that  there  was  no  discharge  of  the  defendants  from 
their  obligations  under  the  contract,  according  to  the  law  of  France  ; 
but  they  go  further,  and  contend  that,  assuming  that  there  was  such  a 
discharge  by  reason  of  the  liquidation  proceedings,  and  that  such  dis- 
charge was  for  this  purpose  equivalent  in  France  to  a  discharge  in 
bankruptcy'  according  to  English  law,  yet  such  discharge  would  be 
no  answer  to  an  action  in  England  upon  an  English  contract.  We  have 
to  decide  the  questions  so  raised,  or  such  of  them  as  it  may  be  neces- 
sary to  decide  for  the  purposes  of  this  case.  The  question  really  is, 
whether  anything  has  been  proved  which  is  an  answer  to  the  plaintiffs' 
action  in  this  country  according  to  the  law  of  England.  It  is  clear  that 
these  were  English  contracts  according  to  two  rules  of  law ;  first, 
because  the}'  were  made  in  England  ;  secondh',  because  they  were  to 
be  performed  in  England.  The  general  rule  as  to  the  law  which  gov- 
erns a  contract  is  that  the  law  of  the  country,  either  where  the  contract 
is  made,  or  where  it  is  to  be  so  performed  that  it  must  be  considered 
to  be  a  contract  of  that  countrj',  is  the  law  which  governs  such  con- 
tract ;  not  merel}'  with  regard  to  its  construction,  but  also  with  regard 
to  all  the  conditions  applicable  to  it  as  a  contract.  I  say  "  applicable 
to  it  as  a  contract "  to  exclude  mere  matters  of  procedure,  which  do 
not  affect  the  contract  as  such,  but  relate  merely  to  the  procedure  of 
the  court  in  which  litigation  may  take  place  upon  the  contract.  The 
parties  are  taken  to  have  agreed  that  the  law  of  such  country  shall  be 
the  law  which  is  applicable  to  the  contract.  Therefore,  if  there  be  a 
bankruptc}'  law,  or  an}'  other  law  of  such  country,  by  which  a  person 
who  would  otherwise  be  liable  under  the  contract  would  be  discharged, 
and  the  facts  be  such  as  to  bring  that  law  into  operation,  such  law- 
would  be  a  law  affecting  the  contract,  and  would  be  applicable  to  it  in 
the  country  where  the  action  is  brought.  That,  at  any  rate,  is  the  law 
of  England  on  the  subject.  So,  where  a  contract  is  made  or  is  to  be 
performed  in  a  foreign  country,  so  as  to  be  a  contract  of  that  country, 
and  there  is  a  bankruptcy  law,  or  the  equivalent  of  a  bankruptcy  law, 
of  that  country,  by  which,  under  the  circumstances  that  have  occurred, 
a  party  to  the  contract  is  discharged  from  liability,  he  will  be  discharged 
from  liability  in  this  country.  But  it  is  only  in  virtue  of  the  principle 
which  I  have  mentioned  that  such  a  discharge  from  a  contract  takes 
place.     It  is  now,  however,  suggested  that,  where  by  the  law  of  the 


54-1-  GIBBS    V.    SOCIETE   INDUSTRIELLE.  [CHAP.  X. 

country  in  whicli  the  defendants  are  domiciled  the  defendants  would, 
under  tlie  circumstances  wliich  have  arisen,  be  discharged  from  liability 
under  a  contract,  although  the  contract  was  not  made  nor  to  be  per- 
formed in  such  country,  it  ought  to  be  held  tliat  they  are  discharged  in 
this  country.  It  seems  to  me  ol)vious  that  such  a  proposition  is  not  in 
accordance  with  tlie  piinciple  wliich  I  have  stated.  The  law  invoked 
is  not  a  law  of  the  country  to  which  the  contract  belongs,  or  one  by 
which  the  contracting  parties  can  be  taken  to  have  agreed  to  be  bound  ; 
it  is  the  law  of  another  country  by  which  they  have  not  agreed  to  be 
bound.  As  Lord  Kenyon  said,  in  Smith  r.  Buchanan,  1  East,  6,  it  is 
sought  to  bind  the  ijlaintitfs  by  a  law  with  which  they  have  nothing  to 
do,  and  to  which  they  liave  not  given  any  assent  either  express  or 
implied.  The  proposition  contended  for  seems  to  me  to  contravene 
the  general  principle  to  which  I  have  alluded  as  governing  these 
matters,  and  to  suggest  a  principle  for  which  there  is  no  foundation  in 
law  or  reason.  Why  should  the  plaintiffs  be  bound  by  the  law  of  a 
country  to  which  tiiey  do  not  belong,  and  by  which  they  have  not  con- 
tracted to  be  bound?  Tlierefore,  i^  it  were  true  that  in  any  of  the 
modes  suggested  the  defendants  were  by  the  law  of  France  discharged 
from  liability,  I  should  say  that  such  law  did  not  bind  the  plaintiffs, 
and  that  they  were  nevertheless  entitled,  according  to  English  law,  to 
maintain  their  action  upon  an  English  contract.  I  should  sa}',  too, 
that,  if  the  contract  had  been  made  in  any  foreign  country  other  than 
France,  the  plaintiffs  could  sue  upon  it  in  this  country,  and  their  action 
would  not  be  affected  by  the  law  of  France.  In  that  case  the  law  of 
such  other  foreign  country  would  govern  the  contract.  That  would  be 
the  conclusion  I  should  come  to,  even  supposing  that  the  propositions 
stated  by  the  defendants  as  to  the  law  of  France  were  in  fact  made  out. 
It  is  not  necessar}-,  in  the  view  I  take,  to  determine  whether  they  were 
or  not.  I  must  say  that  I  do  not  think  it  was  clearly  made  out  that, 
in  an}'  of  the  modes  suggested,  the  defendants  were  by  the  law  of 
France  discharged  from  liability.  I  wish  to  base  my  judgment,  how- 
ever, on  the  assumption  that  they  were  so  discharged.  I  say  that, 
assuming  that  to  be  so,  the  suggestion  that  the  defendants  would  be 
discharged  in  this  countr}"  by  a  law  of  the  countrv  of  their  domicil  is 
altogether  outside  the  general  principle  that  governs  such  matters,  and 
cannot  be  supported.^ 

1  Arc.  lilanclianl  v.  Russell.  13  Mass.  1;   May  i'.  Breed,   7  Cush    15:    Smith  v. 
Smith,  2  Johus.  235.  — Ed. 


SECT.  VIII.]  FELCH    V.    BUGBEE.  545 


FELCH   V.  BUGBEE. 

Supreme  Judicial  Court  of  Maine.    1859. 

[Reported  48  Maine,  9.] 

Kent,  J.^  The  questions  between  the  plaintiff  and  the  principal 
defendants  relate  to  the  effect  of  a  discharge  in  insolvenc}-,  granted  to 
the  defendants  by  the  proper  tribunal  under  the  laws  of  Massachusetts. 
It  appears  from  inspection  of  the  papers  that  the  discharge  was  regu- 
larly granted,  and,  by  its  terms,  includes  the  contract  as  set  forih 
in  each  of  the  notes  in  suit.  The  question  arises,  whether  such  a 
discharge  is  effectual  to  bar  this  action. 

Both  notes  were  made  in  Boston,  payable  to  defendants'  own  order, 
signed  and  indorsed  by  them  to  citizens  ot  J\lassachuseits7^w~ho,  at" 
Boston,  negotiated  and  sold  them  to  the  plaintiff,  before  maturity,  and 
before  the  commencement  of  proceedings  in  insolvency.  The  first  of 
these  notes  contains  no  specification  of  any  place  of  payment;  the 
second  is  payable  at  any  bank  in  Boston.  .  .  . 

The  second  note  ...  is  made  payable  at  any  bank  in  Boston ;  and 
it  is  contended  that  this  stipulation  takes  the  case  out  of  the  prin- 
ciples of  the  former  decisions,  and  makes  it  subject  to  the  discharge 
offered  in  evidence  ;  and  that  a  contract,  although  with  a  citizen  of 
another  State,  is  barred  if  it  is  payable  in  the  State  where  the  debtor 
resides  and  has  obtained  his  discharge. 

The  other  questions  being  disposed  of,  the  only  remaining  one  is, 
whether  the  fact  that  the  note  is  made  payable  in  Massachusetts  gives 
efficacy  to  the  discharge,  although  the  contract  is  with  a  citizen  of 
another  State. 

We  will  first  consider  the  authorities  bearing  on  this  precise  point. 

In  Scribner  r.  Fisher,  2  Gray,  43,  a  majorit}-  of  the  court  in  Massa- 
chusetts decided  that  such  a  note  is  barred  by  a  discharge  in  insolvency 
in  that  State.  This  decision  has  been  reaffirmed  in  several  cases  de- 
cided subsequently  in  that  court.  5  Gray,  539,  and  note.  No  reasons 
are  assigned  in  the  subsequent  cases.  The\'  rest  on  the  case  of  Scrib- 
ner V.  Fisher,  in  which  Metcalf,  J.,  gave  a  dissenting  opinion.  But 
this  is  now  established  as  the  doctrine  of  that  court. 

In  the  case  of  Demerit  v.  Exchange  Bank  (Law  Reporter,  March, 
1858),  Judge  Curtis  held,  "  that  it  is  not  competent  for  the  State  of 
Maine,  under  the  Constitution  of  the  United  States,  to  pass  any  law 
discharging  or  suspending  the  right  of  action  on  a  contract  made  with 
a  citizen  of  another  State  b}'  a  citizen  of  Maine.  This  was  settled  in 
Ogden  V.  Saunders,  12  Wheat.  213,  and  Boyle  v.  Zacharie,  6  Pet- 
348."  "It  is  urged,"  says  Judge  Curtis,  "that  where  the  contract  is 
to  be  performed  in  the  State,  it  is  not  within  Ogden  v.  Saunders.     It 

1  Part  of  the  opinion  only  is  given.  —  Ed. 
36 


546  FELCH   V.    BUGBEE.  [CHAP.  X. 

has  been  so  held  in  Scribner  v.  Fisher,  2  Gray,  43.  But  I  cannot  con- 
cur in  that  opinion.  I  consider  the  settled  rule  to  be  that  a  State  law 
cannot  discharge  or  suspend  the  obligation  of  a  contract,  though  made 
and  to  be  performed  within  the  State,  when  it  is  a  contract  with  a  citi- 
zen of  another  State.  Such  was  Justice  Story's  understanding  of  the 
decisions  of  the  Supreme  Court  of  the  United  States  in  which  he  took 
part.     Springer  v.  Foster,  2  Story,  387." 

/  Mr.  Justice  Story  has  also  expressed  the  same  view  of  the  law  in  his 
/elementary  works.  In  his  Conflict  of  Laws,  §  341,  he  says,  "that 
/  a  dischai'ge  under  any  law  of  the  State  where  made  will  not  operate  to 
I  discharge  any  contracts  except  such  as  are  made  between  citizens  of  the 
Vsame  State."     Very  v.  McHenry,  29  Maine,  214. 

The  Court  of  Appeals  in  New  York,  in  1852,  in  the  case  of  Donnelly 
V.  Corbett,  3  Seld.  500,  had  this  precise  question  before  them, —  the 
contract  being  pa3-able  in  South  Carolina,  where  the  debtor  resided  and 
was  discharged,  —  the  creditor  being  of  New  York.  The  court  held 
that  an  action  on  the  contract  was  not  barred  by  a  discharge.  The 
ground  of  tlie  decision  was,  that  a  discharge,  under  a  State  insolvent 
law,  of  a  debtor  from  his  debts  contracted  after  its  passage,  is  valid  as 
respects  contracts  between  citizens  of  the  State,  but  invalid  as  to  all 
contracts  where  a  citizen  of  another  State  is  a  party.  The  same 
doctrine  is  found  in  Poe  v.  Duck,  5  Md.  Rep.  1. 

In  Anderson  v.  Wheeler,  25  Conn.  613,  the  case  presented  the  same 
question  as  the  one  before  us,  —  the  original  parties  to  the  note  were 
both  of  New  York,  it  was  indorsed  before  due  to  a  citizen  of  Con- 
necticut, it  was  pa3able  at  a  bank  in  New  York,  wliere  the  payee 
oV)tained  his  discharge  in  insolvenc}'.  Tlie  court  refers  to  the  case  of 
Scribner  v.  Fisher,  but  dissents  from  it,  and  decides  that  the  fact  of  the 
place  of  payment  being  designated  does  not  take  it  out  of  the  rule  as 
laid  down  in  Judge  Johnson's  opinion,  concurred  in  by  a  majority  of 
the  court,  in  Ogden  v.  Saunders. 

We  have  also  the  opinion  of  Mr.  Justice  Baldwin  of  the  Supreme 
Court  of  the  United  States,  in  the  case  of  Woodhull  v.  Davis,  Baldwin's 
Rep.  300.  His  decision  is  based  on  the  position  that  bankrupt  or  in- 
solvent laws  can  have  no  extraterritorial  effect  on  persons  beyond  the 
limits  of  the  State  or  nation. 

The  decisions  wiiich  are  in  opposition  to  the  cases  in  Massachusetts 
rest  upon  the  understanding  of  the  doctrine  in  the  original  case  of 
Ogden  V.  Saunders.  All  the  courts,  including  that  of  Massachusetts, 
state  and  national,  agree,  as  a  starting-point,  that  whatever  is  clearl}^ 
and  expressly  decided  in  that  case  is  to  be  taken  as  settled,  although 
the  reasoning  ma}'  not  be  entirely  satisfactor}'.  That  case,  indeed,  re- 
sembles the  works  of  some  ancient  authors,  where  the  commentaries, 
and  doubts,  and  ex|)lanations  outrun  the  text  and  overwhelm  it,  leav- 
ing the  bewildered  student  "  in  wandering  mazes  lost,"  —  ofttimes  the 
"  interpreter  being  the  harder  to  he  understood  of  the  two." 

Mr.  Justice   Woodbury,  in  the  case  of  Town  v.  Smith,  1  Wood.  & 


SECT.  VIII.]  FELCH   V.    BUGBEE.  547 

Minot,  137,  discusses  fully  the  authorities  bearing  on  the  whole  ques- 
tion, and,  although  doubting  some  of  the  views,  and  the  soundness  of 
the  reasoning  on  which  they  are  based,  yet  feels  bound  by  the  authority 
of  the  cases  in  the  Supreme  Court  of  the  United  States,  which  he  under- 
stands as  establishing  the  test  of  citizenship  of  the  parties. 

The  discussions  and  decisions,  have,  however,  resulted  in  bringing 
about  a  general  agreement  as  to  all  the  points  first  enumerated,  leav- 
ing this  single  point  of  the  place  of  performance  yet,  in  a  measure, 
in  controvers}-. 

The  Supreme  Court  of  the  United  States  was  called  upon  to  revise 
and  interpret  the  leading  case  of  Ogden  v.  Saunders,  and  the  judges 
gave  their  opinions  on  the  various  questions  raised,  in  Cook  v.  Moffat, 
5  How,  309.  Whilst  there  is  an  almost  painful  difference  of  opinion 
on  the  question  of  the  soundness  of  the  grounds  assumed  or  reasons 
assigned,  the  court  concurs  in  fixing  certain  principles  as  finally  estab- 
lished. The  one  bearing  on  the  exact  point  before  us  is  thus  stated  : 
"  A  certificate  of  discharge  under  an  insolvent  law  will  not  bar  aa 
action  brought  by  a  citizen  of  another  State,  on  a  contract  with  him." 

This  is  the  state  of  the  authorities  on  the  subject.  ThejDrepoiider- 
ance  seems  clearkjigainstgirmg^efAjn^^  discharge  in  a  case 

"Hke  this. 
"""iTwe  leave  the  authorities  and  seek  Jjeyond  them  fbLlhfi-X£asQns._oj3i 
w-hich  an3^"riile  on  this  subjecO's"foujLdM»jge-£x>d-lwQ  -Iraina  of  argjj- 
.ment,  which,  starMn^JIQin, Jiftexent^Kemise_s^  to  dLr££tlyj04ipriaiiiP 
results.  Thp  whole  controversy  on  this  point  seems  to  turn  uponjhs 
question  whetherjtJs.Jtlie  contract  itself,  includinij;  the  place  of  niakiiig 
and  of  x)ei;fornianc.e,  andjiie  /_t,r  hici  <:u at rart '(.-<,  that  is  to  govern,  xw 
whether  the,  citizfiixahip..QilJiu2-XXuilj:axjting.4iailies_cmi^^^ 
ei-ence  to  the  nature  oi•Jila£e_aLlMJvja^m'43£l^tb^^laIxce-o£4il£-.^^^^ 
"Tt  is  m-g^ed  b}-  those  who  favor  the  first  view,  that,  when  a  foreigner, 
or  a  citizen  of  one  State,  voluntarily  comes  into  another  State,  and 
there  makes  a  contract  with  a  citizen  of  the  latter  State,  not  by  its 
terms  to  be  performed  elsewhere,  the  lex  loci  attaches  to  the  contract, 
and  must  not  only  govern  its  construction,  but  its  validity,  and  the 
grounds  or  facts  by  which  it  may  be  discharged.  The  argument  is, 
that  every  contract  made  has  relation  to  the  existing  law  of  the  State, 
and  (to  apply  the  doctrine  directly  to  the  case  before  us)  that,  when 
such  a  contract  is  made  within  the  territorial  jurisdiction  of  Massa- 
chusetts, the  liability  to  a  discharge  under  the  existing  insolvent  laws 
becomes  a  part  and  parcel  of  that  contract,  incorporated  into  it,  or 
attached  to  it,  as  a  condition  or  limitation,  and  goes  with  it  every- 
where, whoever  makes  or  becomes  a  party  to  it,  at  any  time.  In  this 
view,  citizenship  is  of  no  consequence.  The  ground  on  which  insolvent 
laws  of  a  State,  which  allow  a  full  discharge  of  a  contract,  are  sus- 
tained against  the  objection  that  they  impair  the  obligation  of  con- 
tracts, and  thus  violate  the  provision  of  the  United  States  Constitution, 
is  that  above  stated,  viz. :  that  the  liability  to  such  discharge  is  either 


548  FELCH    V.    BUGBEE.  [CHAP.  X. 

expressly  or  tacitl}-  understood  by  the  parties,  as  a  part  of,  or  a  fixed 
attendant  upon,  all  contracts  made  under  the  overshadowing  canopy  of 
the  statute  of  insolvency  ;  and  that  any  citizen  of  another  State,  who 
comes  voluntarily  within  the  territory  tlius  embraced,  must  be  lield  to 
contract  with  reference  to  the  law,  and  that  the  enforcement  of  it  would 
not  violate  his  rights. 

If  this  were  a  new  question,  this  view  of  the  case  would  certainly-  be 
entitled  to  great  consideration.  It  will,  however,  be  observed,  that  the 
strength  of  this  argument  rests  upon  the  doctrine  of  the  lex  loci  con- 
tractus^ the  place  of  making  the  contract,  not  the  place  of  performance 
only  or  chiefly.  It  is  the  fact  of  making  a  contract  on  a  territory  gov- 
erned by  a  certain  law  that  incorporates  the  law  into  it,  if  it  is  thus  in- 
corporated. And  it  would  seem,  that  if  it  is  not  citizenship,  but  place, 
that  is  to  control,  those  who  favor  this  view  should  have  taken  their 
stand  upon  the  ground  that  every  contract  made  in  the  State,  and  not 
expressly  to  be  performed  elsewhere,  must  be  governed  by  the  existing 
law.  But  this  has  been  given  up  by  all  the  courts.  Even  the  court  in 
Massachusetts  admits  that  the  fact  that  the  contract  was  made  in  that 
State  cannot  bar  recovery,  after  a  discharge  in  insolvency.  The  place 
of  making  is  treated  as  immaterial.  Dinsraore  v.  Bradley,  5  Gra}-,  487  ; 
Houghton  «.  Maynard,  5  Gray,  552  ;  10  Met.  694,  and  numerous  other 
cases.  The  same  court  has  decided  that  a  contract  made  in  Georgia, 
and  there  to  be  performed,  between  two  citizens  of  Massachusetts, 
would  be  barred  by  a  discharge  in  Massachusetts.  Marsh  v.  Putnam, 
3  Gray. 

The  question  naturally  arises,  why  the  place  of  performance  of  a 
contract  should  subject  it  to  the  operation  of  a  discharge,  when  t,hp_ 
place  of  its  formationwould  not.  If  the  tJlace  of  performance  ig 
material,  and"Tnust  control,  it  must  be  because  the  party  out  of  the 
State  voluntarilyassentcd  to  the  condition  fixing  the  place,  thereby 
^I'''n^'"g  ^'^'^  r-r.ivrror.^  Mn<|p.r  tho.  law  of  the  State.  The  same  reasoning 
j[>niild  ■•ip[)ly  to  the  making  of  a  cqntractjYllif^h  fn'gbt.  ]^p  pprfnrmpd__in 
the  State.  When  the  fact  of  the  place  of  making  the  contract  is  not 
regarded  as  essential,  the  citadel,  as  it  seems  to  us^  is  surrenderedj_ 
and  it  is  \a\n  to  attemijt  to  make  a  stand  upon  the  place  of  performance 
alone. 

It  is  conceded  by  the  court  in  Massachusetts  that  the  forum  makes 
no  difference  ;  that  tlie  same  rule  a[)plies  everywhere.  And,  after  a 
careful  consideration  of  the  reasonings  and  decisions  of  the  court  on 
this  vexed  subject,  we  can  only  say  that,  if  the  question  were  an  open 
one  in  all  respects,  we  might  incline  to  the  doctrine  that  the  place  of 
making  anil  the  place  of  [)erfortnance  should  control,  on  the  grounds  be- 
fore stated,  ratlier  than  the  fact  of  naked  citizenship.  Yet  we  are  forced 
to  the  conclusion  that  a  different  rule  has  been  finally  established  hy 
the  Supreme  Court  of  the  United  States,  and  concurred  in  by  most  of 
the  State  courts,  and  we  are  not  disposed  to  depart  from  the  rule  thus 
established.     That  rule  is  the  one  found  in  Cook  v.  Moffat,  5  IIow. 


SECT    VIII.]       PHCENIX    NATIONAL    BANK    V.    BATCHELLER. 


549 


before  cited.  It  rests  entirel}-  upon  the  citizenship  of  the  party,  and 
not  at  all  upon  the  place  of  making  or  perforjnance.  It  is  the  result  of 
that  train  of  reasoning  which  regards  the  insolvent  laws  of  a  State  as 
local,  having  no  extraterritorial  force  so  as  to  act  upon  the  rights  of 
citizens  of  other  States  ;  and  which  holds  that,  as  between  citizens  of 
the  State,  the  discharge  will  bind  them  as  to  all  posterior  contracts, 
wherever  made  or  wherever  to  be  executed  ;  and,  as  to  citizens  of 
other  States,  will  not  discharge  any  existing  contract,  although  made 
or  to  be  performed  in  the  State  granting  the  discharge.  Or,  as  ex- 
prpggpf]  \\\-  the  court,  tlie  discharge  is  hot  a  bar  "  wlien  the  action  is 
brought  b}'  a  citizen  of  another"Statgr"—  Thit.  tiulei  TTTUroad  enoui;li  to,^ 

ipe 
and 


exclude  all  questions  ansingfrom  either  tlie  place  of  making  o 

.of  p&r(brmaUCe.        I^  yf-Sto   Q»t,irt»|vr^n   thp  >.iti7Pnglii|^  pf  t.IlP^  l>fll' 


treats  all  other  matters  as  immaterial 

'e'plaiHtiff  must  haoe  judgment  on  both  Jiotes.^ 


PHCENIX  NATIONAL   BANK   v.  BATCHELLER. 

Supreme  Judicial  Court  of  Massachusetts.     1890. 

[Reported  151  Massachusetts,  589.] 

Holmes,  J.  This  is  an  action  by  a  Rhode  Island  national  bank, 
upon  a  promissory  note  payable  in  Massachusetts,  and  made  here  by 
the  defendants,  citizens  of  this  State.  The  defence  is  a  discharge  in 
insolvency  in  this  State.  It  is  admitted  that  the  plaintiff  did  not  prove 
its  claim  upon  the  note,  and  the  only  question  is  whether,  under  these 
circumstances,  the  discharge  is  a  bar.  It  was  argued  for  the  defend- 
ants, that  the  decisions  of  the  Supreme  Court  of  the  United  States  tliat 
discharges  in  such  cases  are  not  generally  valid  against  citizens  of 
other  States  do  not  go  upon  any  constitutional  ground,  but  upon  mis- 
taken views  of  what  is  called  private  international  law,  and  therefore 
are  not  binding  upon  us  ;  and  we  were  asked  to  reconsider  Kelley  v. 
Drury,  9  Allen,  27,  in  which  this  court  yielded  its  earlier  expressed 
opinion,  and  follo^ved  the  precedent  of  Baldwin  v.  Hale,  1  Wall.  223. 
See  also  Guernsey  v.  Wood,  130  Mass.  503  ;  Maxwell  v.  Cochran,  136 
Mass.  73. 

There  is  no  dispute  that  the  letter  of  the  discharge  and  of  our  stat- 
ute covers  the  plaintiff's  claim  ;  Pub.  Sts.  c.  157,  §§  80,  81  ;  and  the 
argument  in  favor  of  giving  them  effect  according  to  their  letter  is,  that 
unless  the  statute  is  void  we  are  bound  to  follow  it ;  that  the  law  of  the 

1  Ace.  Baldwin  v.  Hale,  1  Wall.  223  ;  Rhodes  v.  Borden,  67  Cal.  7,  6  Pac.  851; 
Anderson  v.  Wheeler,  25  Conn.  603  ;  Hawlev  v.  Hunt,  27  la.  303  ;  Newmarket  Bank  v. 
Butler,  45  N.  H.  236  ;  Phelps  v.  Borland,  103  N.  Y.  406  ;  Main  v.  Messner,  17  Or.  78, 
20  Pac.  255  ;  Roberts  v.  Atherton,  60  Vf.  563,  15  Atl.  160.  — Ed. 


550  PHCENIX    NATIONAL   BANK   V.   BATCHELLER.  [CHAP.  X. 

place  where  the  contract  is  made  and  is  to  be  performed,  which  is  in 
force  at  the  time  of  making  and  for  performing  it,  enters  into  the  con- 
tract so  far  as  to  settle  everywhere  what  acts  done  at  that  place  shall 
discharge  it  (May  v.  Breed,  7  Cush.  15)  ;  and  that  a  discharge  in  ac- 
cordance with  that  law  cannot  be  said  to  impair  the  obligation  of  a  con- 
tract wliich  contemplated  it,  or  to  deprive  the  contractee  of  property 
without  due  process  of  law  when  that  property  was  created  subject  to 
destruction  in  that  vfay. 

We  express  no  opinion  upon  the  weight  of  this  argument.  Although 
it  formerly  prevailed  with  this  court  (Sci'ibner  v.  Fisher,  2  Gra}',  43  ; 
Burrall  v.  Rice,  5  Gray,  539),  it  may  be  that  there  is  a  distinction  as 
to  a  discharge  by  legal  proceedings.  It  may  be  that  statutes  providing 
for  a  discharge  by  an  insolvency  court  do  not  enter  into  the  contract  in 
such  a  sense  as  to  bind  the  contractee  to  adopt  and  submit  himself  to 
the  jurisdiction  as  an  implied  condition  of  the  promisor's  undertaking. 
It  does  not  follow,  because  the  discharge,  if  effective,  does  not  impair 
the  obligation  of  the  contract,  that  absolute  liabilit}'  to  it  is  a  part  of 
the  substantive  obligation.  The  substantive  promise  and  the  obligation 
of  the  contract  are  different  things  ;  and  apart  from  this  consideration 
it  maj-  be  that  by  sound  principle  the  plaintiff  is  to  be  taken  to  have 
subjected  itself  to  Massachusetts  proceedings  onl}'  to  the  extent  that, 
if  the  Massachusetts  courts  could  acquire  jurisdiction  over  it  in  the 
ordinary  modes  i)y  which  jurisdiction  of  the  person  is  acquired,  it 
would  be  bound  everywhere  b}'  a  discharge  granted  here. 

However  this  ma}-  be,  we  see  no  sufficient  reason  for  departing  from 
what  has  been  accepted  as  the  law  for  a  quarter  of  a  century.  We 
agree  that,  consistentlj'  with  our  dut}',  we  cannot  yield  our  opinion 
upon  new  questions  not  subject  to  the  final  jurisdiction  of  the  vSupreme 
Court  of  the  United  States  solely  out  of  a  desire  for  uniformity.  But 
when  we  are  asked  to  overrule  a  decision  of  our  own  court  which  has 
been  acquiesced  in  for  so  long,  we  should  have  to  be  very  sure,  before 
doing  so,  not  only  that  the  decision  was  wrong,  but  also  that  the  Su- 
preme Court  of  the  United  States,  whatever  we  may  think  about  it, 
either  would  not  regard  our  decision  as  subject  to  review  by  them,  or 
would  abandon  opinions  which  the}'  have  expressed  repeatedly,  and 
down  to  the  latest  volume  of  their  reports. 

We  should  hesitate  to  overrule  Kelley  v.  Drury,  even  if  we  were 
ready  to  say  that  we  disagreed  with  the  principle  of  Baldwin  r.  Hale, 
and  that  we  thought  our  decision  not  subject  to  review.  For  when  in 
a  particular  case  the  precedents  are  settled  in  favor  of  uniformity,  the 
fact  that  they  do  conform  to  the  decisions  of  the  Supreme  Court  of  the 
United  States  is  a  most  powerful  secondary  reason  for  not  disturbing 
them,  and  would  be  likely  to  outweigh  our  private  opinions  upon  the 
original  matter.  There  is,  too,  a  particular  reason  for  uniformity  in 
the  present  case,  because  it  is  manifest  that,  practically  at  least,  the 
general  validity  of  the  discharge,  tliat  is,  its  effect  outside  this  Com- 
monwealth, depends  upon  the  decision  of  other  courts  than  this,  and 


SECT.  VIII.]       PHCENIX   N.\T10NAL    BANK   V.    BATCHELLER.  551 

that  the  decision  of  the  United  States  Court  upon  that  question  is  of 
more  importance  than  that  of  any  other. 

TJm.^ft,en  repeated  view  of  the  Supreme  Court  of  the  United  States 
is,  that  discharges  like  the  present  are  void  for  want  of  iurisdiction, 
ai\d  that  statutes  purporting  to  author i^e_them  are  bevond  the  power  of^ 
the  States  to  pass.  Baldwm  v.  Hale,  1  Wall.  223,  233  ;  Baldwin 
■fj.'Bank  of  "Tftr^vbury,  ib.  234  ;  Gihnan  v.  Lockwood,  4  Wall.  409  ; 
Denny  u.  Bennett,  128  U.  S.  489,  497  ;  Cole  v.  Cunningham,  133  U.  S. 
107,  115.  Whether  that  court  would  regard  a  decision  to  the  contrary 
by  a  State  court  as  subject  to  review  by  them  upon  constitutional 
grounds,  does  not  appear  very  clearly  from  any  language  of  theirs 
which  has  been  callecl  to  our  attention,  unless  it  be  the  following,  re- 
peated in  Baldwin  v.  Hale,  1  Wall.  223,  231,  from  Ogdon  v.  Saunders, 
12  Wheat.  213,  369  :  "But  when,  in  the  exercise  of  that  power,  the 
States  pass  beyond  their  own  limits,  and  the  rights  of  their  own  citizens, 
and  act  upon  the  rights  of  citizens  of  other  States,  there  arises  a  con- 
flict of  sovereign  power,  and  a  collision  with  the  judicial  powers  granted 
to  the  United  States,  which  renders  the  exercise  of  such  a  power  in- 
compatible with  the  rights  of  other  States  and  with  the  Constitution  of 
the  United  States."  This  is  somewhat  emphasized  as  the  deliberate 
view  of  the  court,  not  only  by  its  original  mode  of  statement,  but  by 
their  adhesion  to  it  after  the  dissent  of  Chief  Justice  Taney  in  Cook  v. 
Moffat,  5  How.  295,  310.     See  Scribner  v.  Fisher,  2  Gray,  43,  47. 

This  language  certainly  gives  the  impression  that  our  decision  would 
be  regarded  as  subject  to  review,  possibly  on  the  ground  of  an  implied 
restriction  on  the  power  to  pass  insolvent  laws  reserved  to  the  States 
(Denny  v.  Bennett,  128  U.  S.  489,  498)  ;  possibly  on  the  ground  that 
the  discharge  would  impair  the  obligation  of  contracts  with  persons  not 
within  the  jurisdiction  (Cook  v.  Moffat,  5  How.  295,  308)  ;  possibly  by 
reason  of  the  Fourteenth  Amendment  (Pennoyer  v.  Neff,  95  U.  S.  714)  ; 
possibly  on  some  vaguer  ground.  We  feel  the  force  of  the  reasoning 
quoted  from  Stoddard  v.  Harrington,  100  Mass.  87,  89,  but  that  case 
did  not  profess  to  weaken  the  authority  of  Kelley  v.  Drury,  and,  more-_ 
over,  the  question  which  we  are  now  considering  is  not  what  would  be 
our  own  opinion,  but  what  seems  to  be  the  opinion  of  the  Supreme 
Court  of  the  United  States. 

The  decision  in  Kelley  v.  Drury  did  not  go  upon  any  nice  inquiry 
whether  it  was  subject  to  review,  but  upon  the  ground  that  this  court 
deferred  to  the  decision  of  the  Supreme  Court  of  the  United  States, 
that  discharges  like  the  present  were  not  binding  outside  the  jurisdic- 
tion, and  that,  this  being  so,  a  discrimination  should  not  be  made  in 
favor  of  our  citizens  in  proceedings  in  the  State  court  in  distinction 
from  proceedings  in  the  courts  of  the  United  States. 

This  last  proposition  was  conceded  by  the  senior  counsel  for  the  de- 
fendant. But  as  some  doubt  was  thrown  upon  it  in  the  printed  brief, 
we  repeat  what  was  again  intimated  in  Murphy  r.  Manning,  134  Mass. 
488,  that  there  is  nothing  in  the  law  affecting  the  question  before  us 


552  CANADA    SOUTHERN    RAILWAY   V.    GEBHARD.  [CHAP.  X. 

which  indicates  an  intent  to  refuse  foreign  creditors  access  to  the  courts 
of  Massachusetts  as  a  merely  local  rule  of  procedure,  or  otherwise  than 
as  a  consequence  of  the  substantive  right  having  been  barred  by  the 
discharge.  The  form  of  the  discharge  in  the  Pub.  Sts.  c.  157,  §  80, 
and  the  language  of  §  81,  address  themselves  directly  to  the  substan- 
tive right,  and  declare  the  debtor  discharged  from  the  specified  debts. 
It  being  settled  that  the  plaintiffs  debt  is  not  barred,  an  action  can  be 
maintained  to  recover  it  iu  a  State  court. 

Judgment  for  the  plaintiff.  ^ 


CANADA   SOUTHERN  RAILWAY   v.   GEBHARD. 
Supreme  Court  of  the  United  States.     Ib83. 
[Reported  109  United  States,  527.] 

Suits  (commenced  in  the  Supreme  Court  of  the  State  of  New  York 
and  removed  to  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  New  York),  by  holders  of  mortgage  bonds  of  the  Canada 
Southern  Railway  Company,  and  of  extension  bonds,  to  recover  on 
their  extension  bonds  and  on  the  interest  coupons  on  their  mortgage 
bonds.     The  following  are  the  facts  as  stated  by  the  court : 

What  is  now  known  as  the  Canada  Southern  Railway  Company'  was 
originally  incorporated  on  the  28th  February,  1868,  by  the  legislature 
of  the  Province  of  Ontario,  Canada,  to  build  and  operate  a  railroad  in 
that  province  between  the  Detroit  and  Niagara  rivers,  and  was  given 
power  to  borrow  money  in  the  province  or  elsewhere  and  issue  nego- 
tiable coupon  bonds  therefor,  secured  b}'  a  mortgage  on  its  property, 
"  for  completing,  maintaining,  and  working  the  railway."  Under  this 
authority  the  compau}-,  on  the  2d  of  January,  1871,  at  Fort  Erie, 
Canada,  made  and  issued  a  series  of  negotiable  bonds,  falling  due  in 
the  year  1906,  amounting  in  all  to  $8,703,000,  with  coupons  for  semi- 
annual interest  attached,  payable,  principal  and  interest,  at  the  Union 
Trust  Compan}',  in  the  city  of  New  York.  To  secure  the  paj-ment  of 
both  principal  and  interest  as  they  matured,  a  trust  mortgage  was 
executed  by  the  company  covering  "  the  railwaj'  of  said  company,  its 
lands,  tolls,  revenues  present  and  future,  property  and  effects,  fran- 
chises and  appurtenances."  Every  bond  showed  on  its  face  that  it  was 
of  this  kind  and  thus  secured. 

Before  the  31st  of  December,  1873,  the  company  became  satisfied 
that  it  would  be  miable  to  meet  the  interest  on  these  bonds  maturing  in 
the  coming  Januarv,  and  so  it  requested  the  holders  to  fund  their 
coupons  falling  due  January  1,  1874,  Jul}'  1,  1874,  and  January  1, 
1875,    by   converting   tiiem    into  new  bonds   payable   on    the   1st  of 

1  Ace.  Fareira  v.  Keevil,  18  Mo.  166.     See  Chase  v.  Henry,  166  Mass.  579.  — Ed. 


SECT.  VIII.]      CANADA   SOUTHERN   RAILWAY   V.   GEBHARD.  553 

January,  1877,  and  b}'  so  doing  only,  in  legal  effect,  extend  the  time 
for  the  payment  of  the  interest,  without  destroying  the  lien  of  tlie 
coupons  under  the  mortgage,  or  otherwise  affecting  the  obligation  of 
the  old  bonds.  Some  of  the  bondholders  funded  their  coupons,  in 
accordance  with  this  proposition,  and  accepted  the  extension  bonds, 
but,  under  the  arrangement,  their  coupons  were  not  to  be  cancelled 
until  the  new  bonds  were  paid. 

h\  this  condition  of  affairs  the  Parliament  of  Canada,  on  the  26th  of 
May,  1874,  enacted  that  the  Canada  Southern  Railwa}-,  which  was  the 
railway  built  bj'  the  Canada  Southern  Railway  Company  under  its  pro- 
vincial act  of  incorporation,  "  be  declared  to  be  a  work  for  the  general 
advantage  of  Canada,"  and  a  "  body  corporate  and  politic  within  the 
jurisdiction  of  Canada, "  for  all  the  purposes  mentioned  in,  and  with  all 
the  franchises  conferred  b}-,  the  several  incorporating  acts  of  the  legis- 
lature of  the  province.  This,  under  the  provisions  of  the  British  North 
America  Act,  1867,  passed  by  the  Parliament  of  Great  Britain  "  for  the 
Union  of  Canada,  Nova  Scotia,  and  New  Brunswick,  and  the  Govern- 
ment thereof,"  made  the  corporation  a  Dominion  corporation,  and  sub- 
jected it  to  the  legislative  authority  of  the  Parliament  of  Canada, 

On  the  15th  of  March,  1875,  another  series  of  bonds,  amounting  in 
the  aggregate  to  $2,044,000,  or  thereabouts,  was  issued  and  secured 
b}'  a  second  mortgage  to  trustees.  After  the  issue  of  all  the  bonds 
the  company  found  itself  unable  to  pay  its  interest  and  otherwise  finan- 
cially embarrassed,  and  a  joint  committee,  composed  of  three  directors 
and  three  bondholders,  after  full  consideration  of  all  the  circumstances, 
submitted  to  the  company  and  to  the  bondholders  "  a  scheme  of 
arrangement  of  the  affairs  of  the  company,"  which  was  approved  at  a 
meeting  of  the  directors  on  the  28th  of  September,  1877.  This  scheme 
contemplated  the  issue  of  $14,000,000  of  thirtj'-year  bonds,  bearing 
three  per  cent  interest  for  three  years  and  five  per  cent  thereafter,  guar- 
anteed, as  to  interest,  for  twentv  N'ears,  bj'  the  New  York  Central  and 
Hudson  River  Railroad  Company',  the  first  coupons  being  payable 
January  1,  1878.  These  new  bonds  were  to  be  secured  by  a  first 
mortgage  on  the  propert}'  of  the  company,  and  exchanged  for  old 
bonds  at  certain  specified  rates.  The  old  bonds  of  1871  were  to  be 
exchanged  for  new  at  the  rate  of  one  dollar  of  principal  of  the  old  for 
one  dollar  of  the  new,  nothing  being  given  either  for  the  past  due 
coupons  or  the  extension  bonds  executed  under  the  arrangement  in 
December,  1873.  The  proposed  issue  of  bonds  was  large  enough  to 
take  up  all  the  old  indebtedness  at  the  rates  proposed,  whether  bonded 
or  otherwise,  and  leave  a  surplus,  to  be  used  for  acquiring  further 
equipment,  and  for  such  other  purposes  of  the  company  as  the  directors 
might  find  necessary.  This  scheme  was  formally  assented  to  by  the 
holders  of  108,132  shares  of  the  capital  stock  out  of  150,000  ;  by  the 
holders  of  the  bonds  of  1871  to  the  amount  of  $7,332,000  out  of 
$8,703,000;  and  by  the  holders  of  $1,590,000  of  the  second  series  of 
bonds  out  of  $2,029,000  then  outstanding.     Upon  the  representation 


554  CANADA   SOUTHERN    RAILWAY    V.    GEBHARD.  [CHAP.  X. 

of  these  facts  to  the  Parliament  of  Canada,  the  "  Canada  Southern 
Arrangement  Act,  1878,"  was  passed  and  assented  to  in  the  Queen  s 
name  on  the  16th  of  April,   1878. 

This  statute,  after  reciting  the  scheme  of  arrangement,  with  the 
causes  that  led  to  it,  and  that  it  had  been  assented  to  by  the  holders 
of  more  than  two-thirds  of  the  shares  of  the  capital  stock  of  the  com- 
panj-,  and  by  the  holders  of  more  than  three-fourths  of  the  two  classes 
of  bonds,  enacted  that  the  scheme  be  authorized  and  approved  ;  that 
the  new  bonds  be  a  first  charge  "  over  all  the  undertaking,  railway 
works,  rolling  stock,  and  other  plant "  of  the  company,  and  that  the 
new  bonds  be  used  for  the  purposes  contemplated  by  the  arrangement, 
including  the  payment  of  the  floating  debt.  Section  4  was  as  follows : 
"  4.  The  scheme,  subject  to  the  conditions  and  provisos  in  this  act 
contained,  shall  be  deemed  to  have  been  assented  to  by  all  the  holders 
of  the  original  first  mortgage  bonds  of  the  company  secured  by  the 
said  recited  indenture  of  the  fifteenth  day  of  December,  one  thousand 
eight  hundred  and  seventy,  and  of  all  coupons  and  Ifouds  for  interest 
thereon,  and  also  by  all  tLe  holders  of  the  second  mortgage  bonds  of 
the  company  secured  by  the  said  recited  indenture  of  the  fifteenth  day 
of  March,  one  thousand  eight  hundred  and  seventy-five,  and  of  all 
coupons  thereon,  and  also  by  all  the  shareholders  of  the  Canada  South- 
ern Railway  Company,  and  the  hereinbefore  recited  arrangement  shall 
be  binding  upon  all  the  said  holders  of  the  first  and  second  mortgage 
bonds  and  coupons,  and  bonds  for  interest  thereon  respectively,  and 
upon  all  the  shareholders  of  the  company." 

Under  the  arrangement  thus  authorized  the  New  York  Central  and 
Hudson  River  Railroad  Com[)any  executed  the  projxjsed  guaranty,  and 
the  scheme  was  otherwise  carried  into  effect. 

The  several  defendants  in  error  were,  and  always  had  been,  citizens 
of  the  State  of  New  York,  and  were,  at  the  time  the  scheme  of  arrange- 
ment was  entered  into  and  confirmed  by  the  Parliament  of  Canada,  the 
holders  and  owners  of  certain  of  the  bonds  of  1871,  and  of  certain 
extension  bonds,  these  last  having  been  delivered  to  them  respectively 
at  the  Union  Trust  Company  in  the  city  of  New  York,  where  the 
exchanges  were  made,  in  December,  1873.  ^Neither  of  the  defendants 
in  error  assented  in  fact  to  the  scheme  of  an-angeraent,  and  they  did 
not  take  part  in  the  appointment  of  the  joint  committee.  Their  exten- 
sion bonds  have  never  been  paid,  neither  have  the  coupons  on  their 
bonds  of  1871,  which  fell  due  on  the  first  of  July,  1875,  and  since, 
though  demanded.  The  company  has  been  at  all  times  ready  and 
willing  to  issue  and  deliver  to  them  the  full  number  of  new  bonds,  with 
the  guaranty  of  the  New  York  Central  and  Hudson  River  Railroad 
Company  attaciicd,  that  they  would  be  entitled  to  receive  under  the 
scheme  of  arrangement. 

^  These  suits  wore  brought  on  the  extension  bonds  and  past  due 
coupons.  V  The  company  pleaded  the  scheme  of  arrangement  as  a 
defence,  and  at  the  trial  tendered  the  new  bonds  in  exchange  for  the 


SECT.  VIII.]      CANADA    SOUTHERN   RAILWAY   V.    GEBHARD.  555 

old.  The  Circuit  Court  decided  that  the  arrangement  was  not  a  bar  to 
the  actions,  and  gave  judgments  in  each  of  them  against  the  company 
for  the  full  amount  of  extension  bonds  and  coupons  sued  for.  To 
reverse  these  judgments  the  present  writs  of  error  were  brought. 

Waite,  C.  J.^  That  the  laws  of  a  countr}'  have  no  extraterritorial 
force  is  an  axiom  of  international  jurisprudence,  but  things  done  in 
one  countr}'  under  the  authority  of  law  may  be  of  binding  effect  in 
another  countrj'.  The  obligor  of  the  bonds  and  coupons  here  sued  on 
was  a  corporation  created  for  a  public  purpose,  that  is  to  say,  to  build, 
maintain,  and  worii  a  railway  in  Canada.  It  had  its  corporate  home 
in  Canada,  and  was  subject  to  the  exclusive  legislative  authoritj'  of  the 
Dominion  Parliament.  It  had  no  power  to  borrow  money  or  incur 
debts  except  for  completing,  maintaining,  and  working  its  railway. 
The  bonds  taken  by  the  defendants  in  error  showed  on  their  face  that 
the}-  were  part  of  a  series  amounting  in  the  aggregate  to  a  ver}-  lai'ge 
sum  of  money,  and  that  they  were  secured  b\-  a  trust  mortgage  on  the 
railway  of  the  compan}',  its  lands,  tolls,  revenues,  etc.  In  this  way 
the  defendants  in  error,  when  they  bought  their  bonds,  were,  in  legal 
effect,  informed  that  they  were  entering  into  contract  relations  not  only 
with  a  foreign  corporation  created  for  a  public  purpose,  and  carrying 
on  its  business  within  a  foreign  jurisdiction,  but  with  the  holders  of 
other  bonds  of  the  same  series,  who  were  relying  equally  with  them- 
selves for  their  ultimate  security  on  a  mortgage  of  property  devoted 
to  a  public  use,  situated  entirely  within  the  territor}'  of  a  foreign 
government. 

A  corporation  "  must  dwell  in  the  place  of  its  creation,  and  cannot 
migrate  to  another  sovereignty  "  (Bank  of  Augusta  v.  Earle,  13  Pet. 
588),  though  it  may  do  business  in  all  places  where  its  charter  allows 
and  the  local  laws  do  not  forbid.  Railroad  v.  Koontz,  104  U.  S.  12. 
But  wlierever  it  goes  for  business  it  carries  its  charter,  as  that  is  the 
law  or  its  existence  (Relf  v.  Rundel,  103  U.  S.  22G),  and  the  charter  is 
the  same  abroad  that  it  is  at  home.  Whatever  disabilities  are  placed 
upon  the  corporation  at  home  it  retains  abroad,  and  whatever  legisla- 
tive control  it  is  subjected  to  at  home  must  be  recognized  and  sub- 
mitted to  by  tliose  who  deal  with  it  elsewhere.  A  corporation  of  one 
country  mav  be  excluded  from  business  in  another  countr}-  (Paul  v. 
Virginia,  8  Wall.  168),  but,  if  admitted,  it  must,  in  the  absence  of 
legislation  equivalent  to  making  it  a  corporation  of  the  latter  countr}', 
be  taken,  both  by  the  government  and  those  who  deal  with  it,  as  a 
creature  of  the  law  of  its  own  country,  and  subject  to  all  the  legislative 
control  and  direction  that  ma}'  be  properly  exercised  over  it  at  the 
place  of  its  creation.  Such  being  the  law,  it  follows  that  every  person 
who  deals  with  a  foreign  corporatiorX impliedly  subjects  liimself  to  such 
laws  of  the  foreign  government,  affecting  the  powers  and  obligations  of 
the  corporation  with  which  he  voluntarily  contracts,  as  the  known  and 
established  policy  of  that  government  authorizes.  N  To  all  intents  and 

^  Part  of  the  opinion  is  omitted.  — Ed. 


556  CANADA    SOUTHERN    KaILWAY    V.    GEBHARD.         [CHAP.  X. 

purposes,  he  submits  his  contract  with  the  corporation  to  such  a  policy 
of  the  foreign  government,  and  whatever  is  done  by  that  government  in 
furtherance  of  that  polic\-  which  binds  those  in  hke  situation  with  him- 
self, who  are  subjects  of  the  government,  in  respect  to  the  operation 
and  effect  of  their  contracts  with  the  corporation,  will  necessarily  bind 
him.  He  is  conclusively  presumed  to  have  contracted  with  a  view  to 
such  laws  of  that  government,  because  the  corporation  must  of  neces- 
sity be  controlled  by  them,  and  it  has  no  power  to  contract  with  a 
view  to  an}-  other  laws  with  which  they  are  not  in  entire  harmon\'. 
It  follows,  therefore,*»'that  anything  done  at  the  legal  home  of  the  cor- 
poration, under  the  authority  of  such  laws,^,which  discharges  it  from 
liability  there,  discharges  it  everywhere!^ 

No  better  illustration  of  the  propriety  of  this  rule  can  be  found  than 
in  the  facts  of  the  present  case.  This  corporation  was  created  in 
Canada  to  build  and  work  a  railway  in  that  Dominion.  Its  principal 
business  was  to  be  done  in  Canada,  and  the  bulk  of  its  corporate  prop- 
erty was  permanently  fixed  there.  All  its  powers  to  contract  were 
derived  from  the  Canadian  government,  and  all  the  contracts  it  could 
make  were  such  as  related  directly  or  indirectly  to  its  l)usiness  in 
Canada.  That  business  affected  the  public  interests,  and  the  keeping 
of  the  railway  open  for  traffic  was  of  the  utmost  importance  to  the 
people  of  the  Dominion.  The  corporation  had  become  financially 
embarrassed,  and  was,  and  had  been  for  a  long  time,  unable  to  meet 
its  engagements  in  the  ordinary  way  as  the}'  matured.  There  was  an 
urgent  necessity  that  something  be  done  for  the  settlement  of  its  afftiirs. 
In  this  tiie  public,  the  creditors,  and  shareholders  were  all  interested. 
A  large  majority  of  the  creditors  and  shareholders  had  agreed  on  a 
plan  of  adjustment  which  would  enable  the  company  to  go  on  with  its 
business,  and  thus  accommodate  the  public,  and  to  protect  the  creditors 
to  the  full  extent  of  the  available  value  of  its  corporate  propert}'.  The 
Dominion  Parliament  had  the  legislative  power  to  legalize  the  plan  of 
adjustment  as  it  had  been  agreed  on  by  the  majorit}'  of  those  interested, 
and  to  bind  the  resident  minority  creditors  by  its  terms.  This  power 
was  known  and  recognized  throughout  the  Dominion  when  the  corpo- 
ration was  created,  and  when  all  its  bonds  were  executed  and  put  on 
the  market  and  sold.  It  is  in  accordance  with  and  part  of  the  polic}' 
of  the  English  and  Canadian  governments  in  dealing  with  embarrassed 
and  insolvent  railway  companies  and  in  providing  for  their  reorganiza- 
tion in  the  interest  of  all  concerned.  It  takes  the  place  in  England 
and  Canada  of  foreclosure  sales  in  the  United  States,  which  in  general 
accomplish  substantially  the  same  result  with  more  expense  and  greater 
delay  ;  for  it  rarely  hap[)ens  in  the  United  States  that  foreclosures  of 
railwa}'  mortgages  are  anything  else  than  the  machinery  b}'  which 
arrangements  between  the  creditors  and  other  parties  in  interest  are 
carried  into  effect,  and  a  reorganization  of  the  affairs  of  the  corpora- 
tion under  a  new  name  brought  al)()ut.  It  is  in  entire  harmony  with 
the  spirit  of  bankru^jt  laws,  the  bintling  force  of  which,  u[)on  those  who 


SECT.  VIII.]        CANADA    SOUTHERN   RAILWAY   V.    GERHARD.  557 

are  subject  to  the  jurisdiction,  is  recognized  by  all  civilized  nations.  It 
is  not  in  conflict  witli  the  Constitution  of  the  United  States,  which, 
although  prohibiting  States  from  passing  laws  impairing  the  obligation 
of  contracts,  allows  Congress  "  to  establish  .  .  .  uniform  laws  on  the 
subject  of  bankruptcy  throughout  the  United  States."  Unless  all  par- 
ties in  interest,  wherever  they  reside,  can  be  bound  by  the  arrangement 
which  it  is  sought  to  have  legalized,  the  scheme  may  fail.  All  home 
creditors  can  be  bound.  What  is  needed  is  to  bind  those  who  are 
abroad.  Under  these  circumstances  the  true  spirit  of  international 
comity-  requires  that  schemes  of  this  character,  legalized  at  home, 
should  be  recognized  in  other  countries.  The  fact  that  the  bonds  made 
in  Canada  were  payable  in  Ne'w  York  is  unimportant,  except  in  deter- 
mining by  what  law  the  parties  intended  their  contract  should  be  gov- 
erned ;  and  every  citizen  of  a  country,  other  than  that  in  which  the 
corporation  is  located,  may  protect  himself  against  all  unjust  legislation 
of  the  foreign  government  by  refusing  to  deal  with  its  corporations. 

On  the  whole,  we  are  satisfied  that  the  scheme  of  arrangement  bound 
the  defendants  in  error,  and  that  these  actions  cannot  be  maintained. 

Harlan  and  Field,  JJ.,  dissented. 


558  OUY   V.   WINTEK.  [chap.  X. 


SECTION  IX. 

SPECIAL   FORMS    OF   OBLIGATION. 
(A)   Mercaktile  Instruments. 

ORY   V.    WINTER. 

Supreme  Court  of  Louisiana.     1826. 

[Reported  4  Martin,  New  Series,  277.] 

Porter,  J.,^  delivered  the  opinion  of  the  court.  This  case  was  heard 
last  June,  and  judgment  pronounced  at  that  term.  Doubting  the  cor- 
rectness of  our  former  judgment,  we  granted  a  rehearing,  and  the  case 
has  been  argued  again,  and  has  received  all  the  elucidation  of  which  we 
believe  it  is  susceptible. 

The  action  was  instituted  on  a  promissorj'  note  made  at  Natchez, 
pa^'able  to  one  Lloyd  Gilbert,  and  b}-  him  indorsed  to  the  plaintiff  and 
appellee. 

it  is  shown  b}'  a  statute  of  the  State  of  Mississippi,  that  the  maker 
of  a  note,  in  that  State,  may  set  up  any  equitable  defence  against  a 
bona  fide  indorsee  which  he  could  offer  against  the  jDayee.  Laws  of 
Mississippi,  464. 

The  first  question  in  the  cause  is,  by  what  laws  should  this  contract 
be  governed?  The  plaintiff  contends,  that  as  the  note  was  indorsed  in 
this  State,  and  to  a  citizen  of  it,  that  the  rights  of  the  parties  must  be 
ascertained  by  the  laws  of  Louisiana. 

"We  are  clearly  of  opinion  it  should  not.  That  the  validit}'  of  a  con- 
tract must  be  ascertained  in  relation  to  the  laws  of  the  country-  where 
it  is  made,  is  a  rule  as  well  known,  and  of  as  frequent  application  in  this 
court,  as  any  other  we  act  under.  We  see  nothing  in  the  circumstance 
of  tlie  rights  of  one  of  the  parties  being  transferred  to  the  citizen  of 
another  State  which  can  take  the  case  out  of  the  general  principle. 
The  argument  whicli  attempts  to  do  so  takes  for  granted  the  note  was 
negotiable,  in  our  understanding  of  the  term,  thougli  the  ver}'  object  of 
tlie  statute  was  to  take  from  it  that  character.  This  is  not  the  case  of 
a  citizen  of  one  State  claiming  rights  in  opposition  to  those  set  up  bj-  a 
third  part}',  under  a  contract  made  in  pursuance  to  the  laws  of  another 
country.  It  is  a  demand  made  under  an  agreement  entered  into  in  a 
foreign  State,  and  consequently  the  party  claiming  rights  under  it  musi 
take  it  with  all  tlie  limitations  to  which  it  was  subject  in  the  place  where 
it  was  made,  and  that  although  he  be  one  of  our  citizens.^ 

1  Part  of  the  opinion  is  omitted.  — Ed. 

-  All  i|ue>tii)us  as  to  the  validity  and  the  nature  of  a  mercantile  obligation  are  to 
be  determined  by  the  law  of  the  place  where  the  obligation  came  into  being.      Thus 


SECT.  IX.]  LEBEL  V.   TUCKER.  559 


LEBEL   V.   TUCKER. 

Queen's  Bench.     1867. 

[Reported  Law  Reports,  3  Queen's  Bench,  77]. 

Lush,  J.^  The  action  is  on  a  bill  drawn,  accepted,  and  payable  in 
England,  and  which  is  therefore  an  inland  bill ;  and  the  action  is 
brought  by  persons  claiming  the  right  to  sue  by  title  derived  from 
the  drawers  and  payees  according  to  the  English  law.  The  defence 
is,  that  the  indorsement  was  made  in  France,  and  is  not  conformable 
to  the  law  of  France,  which  requires  that  the  indorsement  should  l)ear 
a  date,  and  express  the  consideration  for  the  indorsement  and  the 
name  of  the  indorsee.  The  question  is,  is  that  any  answer  to  an  action 
against  the  acceptor  of  an  English  liill?  The  circumstances  are  some- 
what novel,  but  the  principle  applicable  is  not  novel ;  it  existed  before, 
and  is  well  established  bj-  the  decision  in  Trimbe^'  v.  Vignier,  1  Bing. 

capacity  is  governed  by  the  law  of  the  place  of  eutering  iuto  the  obligation.  Beuton 
V.  Bank,  4.5  Neb.  850,  64  N.  W.  227  ;  14  Clunet,  638  (Germany,  16  Oct.  '83).  See,  how- 
ever, 4  Clunet,  71  (Austria,  23  Dec.  '75^,  domicil  of  the  party  to  be  bound;  26  Chinet, 
177  (Austria,  27  April,  '98),  capacity  of  acceptor  by  place  of  drawing. 

Whetlier  sufficient  consideration  has  passed  is  to  be  governed  by  the  law  of  the  place 
of  obligation  :  as  against  tlie  drawer,  by  the  place  «f  drawing:  Wood  v.  Gibbs,  35  Miss. 
559  ;  as  against  the  acceptor,  by  the  place  of  acceptance:  Webster  r.  Howe  Machine 
Co.,  54  Conn.  394,  8  Atl.  482 ;  Pasic.  Beige,  '93,  2,  39  (Liege,  16  July,  '92) ;  as  against 
the  indorser,  by  the  place  of  indorsement:  Gliddeu  c,  Chamberlin,  167  Mass.  486,  46 
N.  E.  103 ;  Staples  v.  Nott,  129  N.  Y.  403. 

The  form  of  the  obligation  is  governed  by  the  law  of  the  place  of  making ;  as 
whether  commercial  paper  must  be  expressed  as  for  "value  received."  Stix  v.  Mat- 
thews, 63  Mo.  371  ;  Sirey,  '57,  1,  586  (Fr.  Cass.  18  Aug.  '56).  But  see  Emanuel  v. 
White,  34  Miss.  56  (by  law  of  place  of  payment).  So  w'.iether  the  addition  of  a  clause 
giving  attorneys'  fees  deprives  a  bill  of  its  negotiable  character  depends  on  the  law  of 
the  place  of  making.     Howenstein  v.  Barnes,  5  Dill.  482. 

The  nature  of  the  liability  created  is  governed  by  the  law  of  the  place  of  creating 
the  obligation.  Thus  whether  an  "anomalous  indorser"  is  a  joint  maker  is  deter- 
mined by  the  law  of  tJie  place  of  indorsement.  Phipps  v.  Harding,  70  Fed.  468. 
Whether  an  indorser  is  liable  personally  to  the  indorsee  is  determined  by  the  law  of 
the  place  of  indorsement.  Hyatt  v.  Bank,  8  Bush,  193  ;  Nichols  v.  Porter,  2  W.  Va. 
13  ;  16  Clunet,  735  (Cass.  Florence,  16  Jan.'  88).  Whether  an  acceptor  is  liable  to  the 
drawer  is  determined  by  the  law  of  the  place  of  acceptance,  24  Clunet,  387  (Colmar,  11 
Jan.  '95).  Whether  a  note  is  negotiable,  so  that  payment  to  the  payee  or  his  creditor 
before  notice  of  indorsement  would  not  discharge  the  maker,  is  determined  by  the  law 
of  the  place  of  making.  Stevens  t'.  Gregg,  89  Ky.  461,  12  S.  W.  775;  Warren  v. 
Copelin,  4  Met.  594 ;  Dow  v.  Rowell,  12  N.  H.  49.  It  has,  however,  bien  intimated 
that  this  question  is  governed  by  the  law  of  the  place  of  payment.  Brabston  v.  Gibson, 
9  How.  263  {semble)  ;  Strawberry  Point  Bk.  r.  Lee,  117*  Mich.  122,  75  N.  W.  444 
(semhle).  And  see  Savings  Bank  v.  Nat.  Bank,  38  Fed.  800;  Bank  v.  Hemingray,  31 
Oh.  S.  168. 

It  has  been  held  that  whether  an  indorsement  for  a  pre-existing  debt  bars  equities, 
as  a  purchase  for  value,  is  to  be  determined  by  the  law  of  the  place  of  indorsement. 
King  V.  Doolittle.  1  Head  77.  —  Ed. 

'^  The  concurring  opinion  of  Mellor.  J.,  is  omitted.  —  Ed. 


560  LEBEL   V.    TUCKER.  [CHAP.  X. 

N.  C.  151,  viz.,  that  contracts  must  be  governed  b}'  the  law  of  the 
country  where  they  are  made.     Now,  the  contract  on  which  the  present 
defendant,  the  acceptor,  is  sued,  was  made  in  England.     The  contract 
which  the  drawer  proposes  is  this:  he  says,  "Pay  a  certain  sum  at  a 
certain  date  to  my  order ; "  the  acceptor  makes  this  contract  his  own 
by  putting  his  name  as  acceptor,  and  his  contract,  if  expanded  in  words, 
is,  "I  undertake  at  the  maturity  of  the  bill  to  pay  to  the  person  who 
shall  be  the  holder  under  an  indorsement  from  you,  the  payee,  made 
according  to  tlie  law  merchant."     How  can  that  contract  of  the  ac- 
ceptor be  varied  by  the  circumstance  that  the  indorsement  is  made  in 
a  country  where  the  law  is  different  from  the  law  of  England  ?     The 
bill  retains  its  original  character ;  it  remains  an  inland  bill   up  to  the 
time  of  its  maturity,  and  is  negotiable  according  to  English  law  ;  and 
by  the  English  law  a  simple  indorsement  in  blank  transfers  the  right  to 
sue  to  the  holder.     This  principle  is  pointedly  applied  by  the  judgment 
in  Trimbey  v.  Vignier,  1  Bing.  N.  C.  151.     My  Brother  Hayes  is  mis- 
taken in  supposing  that  the  judgment  deals  simpliciter  with  the  place 
of  the  indorsement,  without  reference  to  the  fact  of  the  instrument  it- 
self being  a  French  note  ;  on  the  contrary,  that  fact  lies  at  the  very 
bottom  of  the  decision.     Thus,  at  the  very  commencement  of  the  judg- 
ment TiNDAL,  C.  J.,  after  saying  that  the  point  reserved  was,  whether 
the  plaintiff,  under  the  circumstances  stated  in  the  case,  was  entitled 
to  maintain  the  action  in  an  English  court  of  law  in  his  own  name,  pro- 
ceeds :  "  The  promissory  note  was  made  by  the  defendant  in  France  ; 
and  it  was  indorsed  in  blank  by  the  payee  in  that  country  ;  each  of  the 
parties,  the  maker  and  the  payee,  being  at  the  respective  times  of  mak- 
ing and  indorsing  the  note  domiciled  in  that  country.     The  first  inquiry, 
therefore,  is,  whether  this  action  could  have  been  maintained  by  the 
plaintiff  against  the  defendant  in  the  courts  of  law  in  France."     He 
then  discusses  what  is  the  law  of  France,  and  comes  to  the  conclusion 
that  the  plaintiff,  the  indorsee,  could  not  have  sued  the  maker  in  his 
own  name  in  the  courts  of  France,  and  proceeds:    "The  question, 
therefore,  becomes  this :  Supposing  such  rule  to  prevail  in  the  French 
courts,  by  the  law  of  that  country,  is  the  same  rule  to  be  adopted  by  the 
English  courts  of  law,  when  the  action  is  ])rought  here,  the  law  of  Eng- 
land, applicable  to  the  case  of  a  note  indorsed  in  blank  in  England, 
allowing  the  action  to  be  brought  in  the  name  of  the  holder?     The  rule 
wliich  applies  to  the  case  of  contracts,  made  in  one  country  and  put  in 
suit  ui  the  courts  of  law  of  another  country,  appears  to  be  this  :  that 
the  interpretation  of  the  contract  must  be  governed  by  the  law  of  the 
country  where  the  contract  was  made  {lex  loci  contractus),  the  mode 
of  suing,  and  the  time  within  which  the  action  must  be  brought,  must 
be  governed  by  the  law  of  the  country  where  the  action  is  l)rought." 
He  then  cites  authorities  for  this  position,  and  concludes  :   '^  The  ques- 
tion, therefore,  is,  whether  the  law  of  France,  by  which  the  indorse- 
ment in   blank  does  not  operate  as  a  transfer  of  the  note,  is  a  rule 
which  soverns  and  regulates  the  interpretation  of  the  contract,  or  only 


SECT.  IX.]  ALCOCK  V.    SMITH.  561 

relates  to  the  mode  of  instituting  and  conducting  the  suit.  .  .  .  And 
we  think  the  French  law  on  the  point  above  mentioned  is  the  law  by 
which  the  contract  is  governed,  and  not  the  law  which  regulates  the 
mode  of  suing.  ...  If  the  indorsement  has  not  operated  as  a  transfer, 
that  goes  directl}-  to  the  point  that  there  is  no  contract  upon  which  the 
plaintiff  can  sue.  .  .  .  We  think  that  our  courts  of  law  must  take 
notice  that  the  plaintiff  could  have  no  right  to  sue  in  his  own  name 
upon  the  contract  in  the  courts  of  thj  country  where  such  contract  was 
made  ;  and  that  such  being  the  case  there,  we  must  hold  in  our  courts 
that  he  can  have  no  right  of  suing  here."  The  judgment,  therefore, 
proceeds  on  the  ground  that  the  contract,  that  is,  the  contract  of  the 
maker  of  the  note,  liaving  been  made  in  France,  it  must  be  governed 
by  the  law  of  France.  80  here,  the  contract  of  the  acceptor,  having 
been  made  in  England,  must  be  governed  by  the  English  law.  It 
would  be  anomalous  to  say  that  a  contract  made  in  this  country 
could  be  affected  by  the  circulation  and  negotiation  in  a  foreign 
country  of  the  instrument  by  which  the  contract  is  constituted.  The 
original  contract  cannot  be  varied  b}'  the  law  of  an}-  foreign  country 
through  which  the  instrument  passes.  Therefore,  as  it  seems  clear 
to  me,  the  plaintiffs  are  entitled  to  judgment.  It  is  not  necessary  to 
consider  what  would  be  the  effect  of  this  indorsement  as  against  the 
indorser,  if  sued  in  France ;  probably,  the  courts  of  France  would  hold 
that  the  English  law  governed.  All  we  decide  is,  that  the  acceptor 
having  contracted  in  England  to  pay  in  England,  the  contract  must 
be  interpreted  and  governed  by  the  law  of  England,  and  that  the 
plaintiffs  have  acquired  a  right  to  sue. 

Judgment  for  the  plaintiffs.'^ 


ALCOCK  V.   SI^nTH. 

Court  of  Appeal.     1892. 

[Reported  [1892]  1  Chancery,  238.] 

LiNDLET,  L.  J.^  The  question  in  this  case  is  which  of  two  persons 
is  entitled  to  a  sum  of  £350,  being  the  produce  of  a  certain  cheque  for 
£235  and  a  bill  of  exchange  for  £115.  It  will  not  be  necessar}-  to 
draw  any  distinction  between  the  cheque  and  the  bill,  and,  therefore, 
I  will  allude  only  to  the  bill. 

1  See  Bradlaugh  v.  De  Rin,  L.  R.  5  C.  P.  473. 

The  sufficiency  of  au  indorsement  to  pass  title  to  a  mercantile  instrument  is  to  be 
determined  by  the  law  of  the  place  of  indorsement.  Brook  v.  Vannest,  58  N.  J.  L. 
162,33  Atl.  382;  Woods  v.  Ridley,  11  Humph.  194;  5  Clunet,  51  (Palermo,  7  July, 
'77)  ;  12  Clunet.  79  (Paris,  8  Dec.  '81 )  ;  21  Clunet,  586  ;  (Liejre,  26  July,  '93).  Contra 
(by  the  law  of  the  place  of  payment),  Everett  v.  Vendryes,  19  N.  Y.  436;  20  Clunet, 
194  (Germ.  5  Nov.  '89).  —  Ed. 

2  Concurring  opinions  of  Lopes  and  Kay,  L.JJ.,  are  omitted.  —  Ed. 

36 


562  ALCOCK  V.  SMITH.  [chap.  X. 

The  bill  was  drawn  in  the  English  language  in  England  by  an 
Englishman  named  Ellison  on  Messrs.  Smith,  Payne,  &  Smith,  of 
London,  bankers,  and  was  made  payable  in  London.  It  was  drawn 
to  the  order  of  Messrs.  Andresen  &  Co.,  who  were  merchants  in 
Christiania,  in  Norway.  The  history  of  the  bill  is  this :  It  was 
indorsed  .by  Messrs.  Andresen  to  a  Mr.  Meyer,  and  it  was  on  the  llth 
of  March  indorsed  by  Mr.  Meyer  in  blank,  and  was  given  by  him  to  a 
gentleman  of  the  name  of  Schiender  for  Arthur  Alcock  and  the  firm 
of  J.  F.  Alcock  &,  Co.,  which  last  firm  consisted  of  John  Forster 
Alcock  and  Arthur  Alcock.  It  is  important  to  bear  in  mind  that  it 
was  a  bill  which,  as  it  then  stood  with  Meyer's  indorsement  upon  it, 
was  a  negotiable  instrument  ti-ansferable  to  bearer.  The  Alcocks  then 
held  it  by  their  agent  Schiender.  In  that  state  of  things,  under  a 
judgment  obtained  in  Norway  against  Mr.  John  Forster  Alcock,  one 
of  the  judicial  officers  or  ministerial  officers  in  Norway  (a  person  whom 
I  will  allude  to  for  the  sake  of  shortness  as  a  sheriff)  seized  in  execu- 
tion, according  to  the  law  of  Norway,  this  bill  indorsed  as  it  was,  and 
sold  it  in  accordance  with  the  law  of  Norwa}-.  It  was  bought  bj-  a 
person  of  the  name  of  Schjodt  for  Meyer,  and,  on  the  9tli  of  May,  Me^er 
sold  it  to  Kopmansbank.  It  did  not  require  an}'  further  indorsement, 
because  it  was  sold  as  a  negotiable  instrument  paj-able  to  bearer,  and 
was  bought  by  Kopmansbank  as  a  negotiable  instrument  payable  to 
bearer  ;  and  the}'  bought  it  in  the  ordinary  course  of  business  bond  fide 
and  for  value.  At  that  time  the  bill  was  unquestionably  overdue.  One 
point  which  we  have  to  consider  is,  what  was  the  effect  of  the  purchase 
by  Kopmansbank  of  this  bill  in  its  then  state  and  under  the  circum- 
stances I  have  mentioned,  bearing  in  mind  that  it  was  an  overdue  bill 
of  exchange  ?  Now,  according  to  Mr.  Schiender's  evidence,  which  is 
not  contradicted  or  disputed,  it  is  plain  that,  under  the  law  of  Norway, 
the  judicial  sale  of  that  negotiable  instrument  "  transferable  to  bearer" 
(a  circumstance  to  which  I  attach  great  importance)  conferred  a  good 
title  upon  the  purchaser.  It  is  also  proved  b}-  the  other  evidence 
that,  according  to  the  law  of  Norwa}',  a  person  who  bond  fide  purchases 
for  value  a  bill  of  exchange,  which  bill  is  overdue,  is  not  afll'ected  in 
regard  to  title  as  he  would  be  affected  b}'  the  law  of  England. 

That  being  the  state  of  things,  and  K()pmansbank  having  become 
the  holders  of  that  bill  for  value,  I  proceed  to  consider  whether  thej- 
are  or  are  not  entitled  to  recover  and  hold  for  themselves  the  mone}' 
represented  by  the  bill.  It  has  been  argued  by  Mr.  Haldane  and  Mr. 
Farwell,  that  inasmuch  as  this  was  an  inland  bill  transferred  to  them 
when  it  was  overdue,  altliough  it  was  taken  bond  fide,  the}^  took  it 
suliject  to  all  equities  affecting  the  bill,  and  they  say  that  Kopmansbank 
could  not  maintain  an  action  in  respect  of  that  bill  against  the  acceptor 
of  it.  That  argument  is  based  upon  the  fact  that  this  was  an  English 
bill,  and  upon  the  combined  operation  of  the  Bills  of  Exchange  Act, 
sect.  72,  sub-sect.  2,  which  I  will  read  presentl}-,  sect.  36,  sub-sect.  2, 
and  sect.  21),  sub-sect.  2.     Now,  it  is  impossible  in  applying  those  see- 


SECT.  IX.]  ALCOCK   V.   SMITH.  563 

tions  to  this  bill  and  to  the  title  of  Kopmansbank  to  ignore  the  fact  that 
tbey  acquired  their  title  under  the  judicial  sale,  and  if  due  effect  is 
given  to  that,  then  it  seems  to  me  that,  even  looking  at  the  matter 
in  the  narrowest  possible  point  of  view,  Kopmansbank  are  entitled  to 
recuvLT  this  money  from  the  acceptor. 

Now,  I  will  go  through  the  sections  with  reference  to  the  arguments 
which  have  been  addressed  to  us.  Sect.  72  of  the  Bills  of  Exchange 
Act  lelates  to  the  conflict  of  laws,  and  the  first  part  of  it  does  not 
apply,  but  sub-sect.  2  runs  thus  :  "  Subject  to  the  provisions  of  this  Act, 
the  interpretation  of  the  drawing,  indorsement,  acceptance,  or  accept- 
ance supra  protest  of  a  bill,  is  determined  by  the  law  of  the  place 
where  such  contract  is  made.  Provided  that  where  an  inland  bill"  — 
as  this  is  —  "  is  indorsed  in  a  foreign  countr}-  "  —  as  this  was  —  "  the 
indorsement  shall  as  regards  the  payer "  —  which  I  read  as  the 
acceptor  —  "be  interpreted  according  to  the  law  of  the  United  King- 
dom." Now,  this  bill  was  indorsed  in  such  a  waj',  as  it  api)ears  to 
me,  that  the  indorsement  was  effectual  whether  you  interpret  according 
to  English  law  or  according  to  any  other  law.  Then  sect.  36,  sub-sect. 
2,  is  important,  because,  treating  this  as  an  English  bill  covered  by 
English  law,  it  is  applicable.  Sub-sect.  2  says  this:  "Where  an 
overdue  bill  is  negotiated,  it  can  onh'  be  negotiated  subject  to  any 
defect  of  title  affecting  it  at  its  maturity,  and  thenceforward  no  person 
who  takes  it  can  acquire  or  give  a  better  title  than  that  which  the 
person  from  whom  he  took  it  had."  That  is  to  sa^',  if  you  take  an 
overdue  bill  you  take  it  subject  to  any  defect  of  title  in  the  person 
from  whom  you  got  it.  That  gives  rise  to  the  question,  Was  theie 
any  defect  in  title  in  Meyer,  from  whom  Kopmansbank  got  it?  That 
must  be  considered.  But  Meyer  got  it  under  the  judicial  sale,  and 
there  was  no  defect  at  all.  Now,  "  defect  of  title  "  is  a  phrase  in- 
troduced into  the  Bills  of  Exchange  Act  in  lieu  of  the  old  expression 
'•  subject  to  equities,"  which  is  an  expression  not  adopted  because  the 
Act  applies  to  Scotland  as  well  as  to  England,  and  "  subject  to  equi- 
ties '"  is  an  expression  not  known  to  Scotch  law.  Sect.  29,  sub-sect.  2, 
says  "In  particular  the  title  of  a  pei'son  who  negotiates  a  bill  is 
defective  within  the  meaning  of  this  Act  when  he  obtained  the  bill,  or 
the  acceptance  thereof,  h\  fraud,  duress,  or  force  and  fear,  or  other 
unlawful  means,  or  for  an  illegal  consideration,  or  when  he  negotiates 
it  in  breach  of  faith,  or  under  such  circumstances  as  amount  to  a 
fraud."  The  present  case  clearh*  does  not  come  within  those  words. 
The  only  possible  words  under  which  it  could  come  would  be  "or 
other  unlawful  means."  But  the  means  b}-  which  Meyer  got  the  bill 
were  not  unlawful ;  they  were  lawful  according  to  the  law  of  the  place 
where  the  transaction  took  place.  Therefore,  putting  the  case  in  the 
light  most  favorable  to  the  appellants,  Kopmansbank  have  a  good 
title  to  this  bill  and  the  money  represented  b}-  it,  treating  it  as  an 
English  bill  and  applying  the  provisions  of  the  Bills  of  Exchange  Act, 
having  regard,  of  course,  to  what  took  place  in  Norway. 


564  ALCOCK   V.   SMITH.  [CHAP.  X. 

Now,  if  that  is  so,  we  have  only  further  to  consider  whether  there 
are  any  equitable  grounds  for  depriving  those  gentlemen  of  the  money 
to  which  they  have  become  entitled.  The  appellants  put  their  case 
very  forcibly  in  this  way,  that  the  judicial  sale  of  the  bill  was  subject 
to  the  claim  of  Arthur  Alcock  to  eight-elevenths  of  this  money  ;  but 
how  can  that  equity  attach  to  a  bill  indorsed  in  l)lank,  and  so  transfer- 
able to  bearer?  That  maybe  a  question  between  themselves,  but  it 
does  not  affect  any  person  taking  the  bill.  The  bill  is  taken  simply 
with  notice  that  the  sheriff,  as  I  have  called  him,  was  selling.  Now, 
what  did  the  sheriff  sell?  He  did  not  sell  the  bit  of  paper  merely,  but 
he  sold  the  bill  —  that  is  to  say,  he  sold  the  benefit  of  the  contract 
represented  by  the  paper  which  he  handed  over.  What  was  that 
benefit,  and  what  was  the  contract  ?  The  contract  on  the  part  of  the 
acceptor  was  to  pay  the  bill  to  the  lawful  holder.  That  is  said  to 
mean,  the  lawful  holder  according  to  the  law  of  England.  I  agree. 
But  we  must  not  ignore  what  took  place  in  Norway.  The  argument  on 
the  part  of  the  appellants  is  that  we  ought  to  shut  our  eyes  to  the  mode 
and  circumstances  under  which  Meyer  got  the  bill.  If  the  mode  and 
circumstances  under  which  he  got  it  were  such  as  to  give  him  a  title  in 
Norway,  not  only  to  the  bill  but  to  the  benefit  of  the  contract,  then 
Kopmansbank  are  the  lawful  holders  by  the  law  of  England,  and  there 
would  be  no  defence  to  an  action.  The  equity  is  displaced  by  the 
verv  same  reasoning.  You  cannot  enforce  the  equity  as  against  the 
bond  fide  holder  of  a  bill  which  is  transferable  to  bearer,  and  of  which 
he  is  the  lawful  holder. 

With  reference  to  the  authorities,  I  do  not  think  I  need  say  much. 
The  strength  of  the  plaintiffs'  case  is  that  this  was  an  overdue  bill  with 
notice  of  the  defect  in  title.  The  answer  is  that  there  is  no  defect  of 
title,  and  therefore  there  is  nothing  for  the  holders  to  have  notice  of. 
The  cases  of  Lebel  v.  Tucker,  Law.  Rep.  3  Q.  B.  77  ;  Lee  v.  Abdy,  1 7  Q. 
B.  D.  309  ;  and  Bradlaugh  v.  De  Rin,  Law  Rep.  3  C.  P.  538  ;  Ibid.  5  C.  P. 
473,  do  not  appear  to  me  to  touch  this  case  at  all.  We  are  asked  to 
say  on  the  authority  of  those  cases  that  the  court  is  to  ignore  a  title 
which  is  good  according  to  the  law  of  the  country  where  the  bill  has 
been  sold.  Those  cases  lay  down  no  such  principle.  The  difficulty  of 
the  appellants  in  this  case  arises  from  the  fact  that  Alcocks,  though 
they  had  been  the  lawful  holders  of  the  bill,  had  ceased  to  be  so  by 
the  law  of  Norway.  Lebel  v.  Tucker,  Law.  Rep.  3  Q.  B.  77,  does  not 
touch  that,  nor  do  any  of  the  cases  which  have  been  referred  to  come 
near  it. 

On  those  short  grounds,  treating  this  to  the  fullest  extent  as  a  bill 
overdue  when  bought,  and  assuming  that  Kopmansbank  are  supposed 
to  have  had  notice  of  any  defect  of  title,  the  fact  that  there  was  no 
defect  of  title  is  a  complete  answer  both  at  law  and  in  equity.  There- 
fore, I  am  of  opinion  that  the  learned  judge  in  the  court  below  in  this 
case  was  quite  right,  and  that  this  appeal  must  be  dismissed  with 
costs. 


SECT.  IX.]  AYMAK   V.    SHELDON.  565 


AYMAR  V.    SHELDON. 

Supreme  Court,  New  York.     1834. 

[Reported  12    Wendell,  439.] 

Error  from  the  Superior  Court  of  the  city  of  New  York.  Sheldon 
and  others,  as  indorsees,  brought  a  suit  against  B.  &  I.  Q.  A^-mai",  as 
indorsers  of  a  bill  of  exchange,  bearing  date  4th  June,  1830,  drawn  by 
V.  Cassaigne  &  Co.  St.  Pierre,  at  Martinique,  on  L'Hotelier  Freres,  at 
Bordeaux,  in  France,  for  4,000  francs,  payable  at  twenty-four  days' 
sight,  to  the  order  of  B.  Ayraar  &  Co.,  the  name  of  the  firm  of  B.  &  I. 
Q.  Aymar.  The  plaintiffs  set  forth  the  indorsement  of  the  bill  of  ex- 
change at  the  city  of  New  York,  where,  they  averred,  that  they  and 
the  defendants,  all  being  citizens  of  the  United  States  at  the  time  of 
the  indorsement,  respectively  dwelt  and  had  their  homes  ;  and  then 
aver  that  on  the  11th  August,  1830,  the  bill  of  exchange  was  presented 
to  L'Hotelier  Freres,  at  Bordeaux,  for  acceptance,  according  to  the 
custom  of  merchants,  and  that  they  refused  to  accept ;  whereupon  the 
bill  was  dul}'  protested  for  non-acceptance,  and  notice  given  to  the  de- 
fendants. The  defendant  pleaded  :  1.  Non-assumpsit ;  2.  That  the  bill 
declared  on  was  made  and  drawn  in  the  island  of  Martinique,  a  country 
then,  since,  and  now,  under  the  dominion  and  government  of  the  king 
of  France,  by  persons  there  dwelling  subjects  of  the  king  of  France  ; 
and  that  the  bill,  according  to  its  tenor,  was  payable  at  Paris,  in  the 
kingdom  of  France,  by  persons  then  and  still  residing  and  dwelling  at 
Bordeaux,  in  the  kingdom  of  France,  subjects  of  the  king  of  France,  to 
wit,  on,  etc.  at,  etc. ;  that  the  island  of  Martinique,  as  well  as  Paris 
and  Bordeaux,  and  the  persons  therein  respectively  residing,  and  the 
drawers  and  drawees  were  subject  and  governed  by  the  laws  of  the 
kingdom  of  France,  there  and  then,  and  still  existing  and  in  force,  to 
wit  on,  etc.  at,  etc.  ;  that  by  the  laws  of  France,  then  and  still  at  the 
several  places  in  the  plea  mentioned,  existing  and  in  force,  it  is  estab- 
lished, enacted,  and  provided,  in  relation  to  bills  of  exchange  drawn 
and  payable  in  the  countries  subject  to  the  laws  of  France,  among 
other  things,  in  manner  and  form  following,  namely :  The  drawer  and 
indorsers  of  a  bill  of  exchange  are  severally  liable  for  its  acceptance 
and  payment  at  the  time  it  falls  due.  Code  de  Commerce,  119.  The 
refusal  of  acceptance  is  evidenced  by  an  act  denominated  protest 
for  non-acceptance,  id.  120.  On  notice  of  the  protest  for  non- 
acceptance,  the  indorsers  and  drawer  are  respectively  bound  to  give 
security,  to  secure  the  payment  of  the  bill  at  the  time  it  falls  due.  or 
to  effect  reimbursement  of  it,  with  the  expense  of  protest  and  re-ex- 
change. The  time  when  a  bill  of  exchange  becomes  due,  if  payable  at 
one  or  more  days  after  sight,  is  fixed  by  the  date  of  the  acceptance,  or 
by  the  date  of  the   protest  for  non-acceptance.     The  holder  is  not 


566  AYMAR    V.    SHELDON.  [CHAP.  X. 

excused  the  protest  for  non-payment  by  the  protest  for  non-acceptance. 
After  the  expiration  of  the  above  periods  (certain  periods  specified  in 
the  code,  and  which,  in  the  case  of  a  bill  drawn  in  the  West  Indies  on 
France,  is  one  year)  for  the  i>i-esentment  of  bills  at  sight,  or  one  or 
more  days  after  sight,  for  protest  of  non-payment,  the  holder  of  the  bill 
loses  all  his  claim  against  the  indorsers,  etc.  setting  forth,  besides  the 
above,  a  variety  of  other  provisions  of  the  French  code,  relative  to  bills 
of  exchange,  and  then  averring,  that  although  at  the  time  of  the  com- 
mencement of  the  action  of  the  plaintiffs,  twenty-four  days  after  sight 
of  the  bill  of  exchange  declared  on  had  elapsed,  from  the  day  when  the 
same  was  alleged  to  have  been  protested  for  non-acceptance,  yet  no 
protest  of  the  said  bill  for  non-payment  had  been  made,  concluding  with 
a  verification  and  prayer  of  judgment.  3.  The  defendants  pleaded, 
after  referring  to  the  matter  of  inducement  stated  in  the  second  plea, 
that  on  notice  of  protest  for  non-acceptance,  as  alleged  in  the  declara- 
tion, they  were  ready  and  willing  to  give  security;  and  offered  to  the 
plaintiffs  to  give  security,  according  to  the  true  intent  and  meaning  of 
the  laws  of  France,  to  secure  payment  of  the  bill  at  the  time  wlien  the 
same  should  fall  due,  to  wit,  on,  etc.  at,  etc.,  concluding  as  in  last  plea. 
To  the  second  plea  the  plaintiffs  demurred,  and  took  issue  upon  the 
third,  denying  that  the  defendants  did  offer  security,  etc. 

The  Superior  Court,  on  the  argument  of  the  demurrer,  adjudged  the 
second  plea  to  be  bad  ;  after  which  the  issues  of  fact  were  tried.  The 
jury  found  for  the  plaintiffs,  on  the  plea  of  non-assumpsit,  and  assessed 
their  damages  at  $895.52,  and  found  a  verdict  for  the  defendants  on 
the  third  plea.  Notwithstanding  which  last  finding,  the  court  gave 
judgment  for  the  plaintiffs  on  the  whole  record.  The  defendants  sued 
out  a  writ  of  error. 

By  the  court,  Nelson,  J.  The  only  material  question  arising  in  this 
case  is,  whether  the  steps  necessary  on  the  part  of  the  holders  of  the 
bill  of  exchange  in  question,  to  subject  the  indorsers  upon  default  of 
the  drawees  to  accept,  must  be  determined  by  the  French  law,  or  the 
law  of  this  State?  If  by  our  law,  the  plaintiffs  below  are  entitled  to 
retain  the  judgment ;  if  by  the  law  of  France,  as  set  out  and  admitted 
in  the  pleadings,  the  judgment  must  be  reversed. 

AVe  have  not  been  referred  to  any  case,  nor  have  any  been  found  in 
our  researches,  in  which  the  point  now  presented  has  been  examined 
or  adjudged.  •  But  there  are  some  familiar  principles  belonging  to  the 
law  merchant,  or  applicable  to  bills  of  exchange  and  promissory  notes, 
which  we  think  are  decisive  of  it.  The  persons  in  whose  favor  the  bill 
was  drawn  were  bound  to  present  it  for  acceptance  and  for  payment, 
according  to  the  law  of  France,  as  it  was  drawn  and  payable  in  French 
territories;  and  if  the  rules  of  law  governing  them  wore  applicable  to 
the  indorsers  and  indorsees  in  this  case,  the  recover}'  below  could 
not  be  sustained,  because  presentment  for  payment  would  have  been 
essential  even  after  protest  for  non-acceptance.  No  principle,  however, 
seems  more  fully  settled,  or  better  understood  in  commercial  law,  than 


SECT.  IX.]  AYMAR   V.   SHELDON.  567 

that  the  contract  of  the  indorser  is  a  new  and  independent  contract, 
and  that  the  extent  of  his  obligations  is  determined  b}-  it.  The  transfer 
b}'  indorsement  is  equivalent  in  effect  to  the  drawing  of  a  bill,  the 
indorser  being  in  almost  every  respect  considered  as  a  new  drawer. 
Chitty  on  Bills,  142  ;  3  East,  482  ;  2  Burr.  674,  5  ;  1  Str.  441  ;  Selw. 
N.  P.  256.  On  this  ground,  the  rate  of  damages  in  an  action  against 
the  indorser  is  governed  by  the  law  of  the  place  where  the  indorsement 
is  made,  being  regulated  b}'  the  lex  loci  contractus.  6  Cranch,  21  ; 
2  Kent's  Com.  460;  4  Johns.  R.  119.  That  the  nature  and  extent 
of  the  liabilities  of  the  drawer  or  indorser  are  to  be  determined  accord- 
ing to  the  law  of  the  place  where  the  bill  is  drawn  or  indorsement 
made,  has  been  adjudged  both  here  and  in  England.  In  Hix  v.  Brown, 
12  Johns.  R.  142,  the  bill  was  drawn  hy  the  defendant,  at  New  Orleans, 
in  favor  of  the  plaintiff,  upon  a  house  in  Philadelphia  ;  it  was  pro- 
tested for  non-acceptance,  and  due  notice  given  ;  the  defendant  obtained 
a  discharge  under  the  insolvent  laws  of  New  Orleans  after  such  notice, 
by  which  he  was  exonerated  from  all  debts  previously  contracted,  and, 
in  that  State,  of  course  from  the  bill  in  question.  He  pleaded  his  dis- 
charge here,  and  the  court  sa}-,  "  It  seems  to  be  well  settled,  both  in 
our  own  and  in  the  English  courts,  that  the  discharge  is  to  operate 
according  to  the  lex  loci  upon  the  contract  where  it  was  made  or  to  be 
executed.  The  contract  in  this  case  originated  in  New  Orleans,  and 
had  it  not  been  for  tlie  circumstance  of  the  bill  being  drawn  upon  a 
person  in  another  State,  there  could  be  no  doubt  but  the  discharge 
would  reach  this  contract ;  and  this  circumstance  can  make  no  differ- 
ence, as  the  demand  is  against  the  defendant  as  drawer  of  the  bill,  in 
consequence  of  the  non-acceptance.  The  whole  contract  or  responsi- 
hilitv  of  the  drawer  was  entered  into  and  incurred  in  New  Orleans. 
The  case  of  Peters  v.  Brown,  5  East,  124,  contains  a  similar  principle. 
See  also  3  Mass.  R.  81  ;  Van  Raugh  v.  Van  Arsdaln,  3  Gaines,  154  ; 
1  Cowen,   107  ;  6  Cranch,  221  ;  4  Cowen,   512,  n. 

The  contract  of  indorsement  was  made  in  this  case,  and  the  execu- 
tion of  it  contemplated  by  the  parties  in  this  State  ;  and  it  is  therefore 
to  be  construed  according  to  the  laws  of  New  York.  The  defendants 
below,  by  it,  here  engage  that  the  drawees  will  accept  and  pay  the  bill 
on  due  presentment,  or,  in  case  of  their  default  and  notice,  that  they 
will  pay  it.  All  the  cases  which  determine  that  the  nature  and  extent  of 
the  obligation  of  the  drawer  are  to  be  ascertained  and  settled  according 
to  the  law  of  the  place  where  the  bill  is  drawn,  are  equally  applicable 
to  the  indorser ;  for,  in  respect  to  the  holder,  he  is  a  drawer.  Adopt- 
ing this  rule  and  construction,  it  follows  that  the  law  of  New  York 
must  settle  the  liability  of  the  defendants  below.  The  bill  in  this  case 
is  payable  twent3'-four  days  after  sight,  and  must  be  presented  for 
acceptance  ;  and  it  is  well  settled  by  our  law,  that  the  holder  may  have 
immediate  recourse  against  the  indorser  for  the  default  of  the  drawee 
in  this  respect.  3  Johns.  R.  202  ;  Chitty  on  Bills,  231,  and  cases  there 
cited. 


568  AYMAR    V.    SHELDON".  [CHAP.   X. 

Upon  the  principle  that  the  rights  and  obligations  of  the  parties  are 
to  be  determined  b}-  the  law  of  the  place  to  which  the}'  had  relerence 
in  making  the  contract,  there  are  some  steps  which  the  holder  ranst  take 
according  to  the  law  of  the  place  on  which  the  bill  is  drawn.  It  must 
be  presented  for  pa3ment  when  due,  having  regard  to  the  number  of 
days  of  grace  there,  as  the  drawee  is  under  obligation  to  pay  only 
according  to  such  calculation  ;  and  it  is  therefore  to  be  presumed  that 
the  parties  had  reference  to  it.  So  the  protest  must  be  according  to 
the  same  law,  whicli  is  not  only  convenient,  but  grows  out  of  the  neces- 
sity of  the  case.  The  notice,  however,  must  be  given  according  to  the 
law  of  the  place  where  the  contract  of  the  drawer  or  indorscr,  as  the 
case  may  be,  was  made,  such  being  an  imphed  condition.  Chitt^'  on 
Bills,  266,  93,  217;  Bayley,  28;  Story's  Conflict  of  Laws,  298. 

The  contract  of  the  drawers  in  this  case,  according  to  the  French 
law,  was,  that  if  the  holder  would  present  the  bill  for  acceptance 
within  one  year  from  date,  it  being  drawn  in  the  West  Indies,  and  it  was 
not  accepted,  and  was  dul}'  protested  and  notice  given  of  the  protest, 
he  would  give  security'  to  pa}'  it,  and  pay  the  same  if  default  was  also 
made  in  the  payment  by  the  drawee  after  protest  and  notice.  This  is 
the  contract  of  the  drawers,  according  to  this  law,  and  the  counsel  for 
the  plaintiffs  in  error  insists  that  it  is  also  the  implied  contract  of  the 
indorser  in  this  State.  But  this  cannot  be,  unless  the  indorsement  is 
deemed  an  adoption  of  the  original  contract  of  the  drawers,  to  be  reg- 
ulated b}'  the  law  governing  the  drawers,  without  regard  to  the  place 
where  the  indorsement  is  made.  "We  have  seen  that  this  is  not  so ; 
that  notice  must  be  given  according  to  the  law  of  the  place  of  indorse- 
ment ;  and  if,  according  to  it,  notice  of  non-payment  is  not  required, 
none  of  course  is  necessary  to  charge  the  indorser.  But  if  the  above 
position  of  the  plaintiffs  in  error  be  correct,  notice  could  not  then  be 
dispensed  with,  the  law  of  the  drawer  controlling.  The  above  position 
of  the  counsel  would  also  be  irreconcilable  with  the  principle,  that  the 
indorsement  is  equivalent  to  a  new  bill,  drawn  upon  the  same  drawee  ; 
for  then  the  rights  and  liabilities  of  the  indorser  must  be  governed  by 
the  law  of  the  place  of  the  contract,  in  like  manner  as  those  of  the 
drawer  are  to  be  governed  b}-  the  laws  of  the  place  where  his  contract 
was  made.  Both  stand  upon  the  same  footing  in  this  respect,  each  to 
be  charged  according  to  the  laws  of  the  country  in  which  they  were  at 
the  time  of  entering  into  their  respective  obligations. 

I  am  aware  that  this  conclusion  may  operate  harshl}'  upon  the 
indorsers  in  this  case,  as  they  may  not  be  enabled  to  have  recourse 
over  on  the  drawers.  But  this  grows  out  of  the  peculiarity  of  the  com- 
mercial code  which  France  has  seen  fit  to  adopt  for  herself,  materially 
differing  from  that  known  to  the  law  merchant.  We  cannot  break  in 
upon  the  settled  principles  of  our  commercial  law,  to  accommodate 
them  to  those  of  France  or  an}'  other  country.  Tt  would  involve  thorn 
in  great  confusion.  The  indorser,  however,  can  always  protect  liim- 
self  by  special   indorsement,  requiring  the  holder  to  take  the  steps 


SECT.  IX.]  ROUQUETTE   V.   OVERMANN.  569 

necessary  according  to  the  French  law,  to  charge  the  drawer.  It  is  the 
business  of  the  holder,  without  such  an  indorsement,  only  to  take  such 
measures  as  are  necessary  to  charge  those  to  whom  he  intends  to  look 
for  payment.  Judgment  affirmed} 


KOUQUETTE   v.    OVERMANN. 

Queen's  Bench.     1875. 

[Reported  Law  Reports,  10  Queen's  Bench,  525.] 

This  was  an  action  brought  by  the  plaintiff  as  indorsee  and  holder 
against  the  defendants  as  drawers  and  indorsers  of  a  bill  of  exchange. 
The  bill  is  as  follows  : 

"Manchester,  28th  June,  1870.  For  £345  15s.  2d.  sterling.  On 
the  5th  of  October,  1870,  pay  this  first  of  exchange  (second  and  third 
unpaid)  to  the  order  of  ourselves  the  sum  of  £345  15s.  2d.  sterling,  at 
the  exchange  as  per  indorsement  for  value  received,  which  place  to 
account  as  advised.  Overmann  &  Schou. 

"  To  Messrs.  Magalhaes  Freres,  5  Rue  Martel,  Paris." 

Defendants  indorsed  the  bill  to  plaintiff  in  England.  The  bill  was 
duly  presented  to  the  drawees  in  Paris  and  accepted  b}-  them.  Before 
the  time  for  payment,  war  having  broken  out  between  France  and 
Germany,  payment  of  this  and  similar  instruments  was  postponed 
from  time  to  time  by  the  legislative  authority  in  France,  and  demand 
of  payment  before  the  time  fixed  forbidden,  until  a  delay  of  eleven 
months  was  finally  provided.  On  the  5th  of  September,  the  day  on 
which  the  extended  term  of  grace  expired,  the  bill  was  presented  for 

1  It  is  held  generally  in  this  country  that  the  nature  of  the  notice  required  to  bind 
a  drawer  or  indorser  to  a  holder  depends  upon  the  law  of  the  place  of  drawing  or 
indorsement.  Thorp  v.  Craig,  10  la.  461  ;  Huse  v.  Haniblin,  29  la.  501 ;  Snow  v. 
Perkins,  2  Mich.  238  ;  Douglas  i'.  Bank  of  Commerce,  97  Tenn.  133,  36  S.  W.  874  ; 
Raymond  v.  Holmes,  11  Tex.  54.  Contra  (by  the  law  of  the  place  of  payment  of  the 
instrument),  Rothschild  v.  Currie,  1  Q.  B.  43  ;  Wooley  v.  Lyon,  117  111.  244,  6  N.  E. 
885 ;  Chew  v.  Read,  11  Sm.  &  M.  182 ;  3  Clunet,  361  (Paris,  22  March,  '75). 

So,  it  has  been  held,  that  whether  a  provision  of  the  bill  has  the  effect  of  a  waiver  of 
notice  by  the  indorsee  is  determined  by  the  law  of  the  place  of  making  and  indorse- 
ment.    Dunnigan  r.  Stevens,  122  111.  396,  13  N.  E.  51. 

Whether  prior  judgment  against  the  maker  is  required  before  suing  the  indorser  is 
likewise  governed  by  the  law  of  the  place  of  indorsement.  Williams  v.  Wade,  1  Met. 
82  {semble).  And  what  diligence  is  necessary  to  bind  drawer  or  indorser  is  governed 
by  the  law  of  the  place  of  drawing  or  indorsement.  Hunt  v.  Staudart,  15  Lid.  33; 
Warner  v.  Citizens'  Bank,  6  S.  D.  152,60  N.  W.  746;  Sirey,  '96,  4,  7  (Cass.  Florence, 
8  Apr.  '95).  Contra  (by  law  of  place  of  payment),  15  Clunet,  554  (Palermo,  13  Dec. 
'86). 

The  form  of  protest  is  regulated  by  the  law  of  the  place  of  protest,  i.  e.,  of  payment. 
Todd  V.  Neal,  49  Ala.  266  ;  Kentucky  Com.  Bk.  v.  Barksdale,  36  Mo.  563;  21  CluneW 
370  (Brussels,  14  June,  '93).  —  Ed. 


570  ROUQUETTE    V.    OVERMANN,  [CHAP.  X. 

payment,  which  was  refused.  The  bill  was  duh*  protested,  according 
to  the  French  law,  on  the  6th  of  September,  and  notice  of  dishonor 
and  of  the  protest  duly  sent  to  the  defendants.  The  defendants  refused 
paj-ment.^ 

CocKBURN,  C.  J.  The  main  ground  of  defence  is  that  due  diligence 
was  not  used  by  the  holders  of  the  bill  in  presenting  it  for  payment  at 
the  appointed  time,  or  in  giving  notice  of  dishonor  on  its  non-pay- 
ment at  that  time  ;  b\'  reason  of  which  the  indorsers  were  discharged  ; 
whence,  as  was  contended,  it  followed  that  the  plaintiff  had  paid  the 
bill  in  his  own  wrong,  and  therefore  could  not  claim  to  be  indemnified 
by  the  defendants;  who,  again,  it  was  said,  were  entitled  on  their  own 
account  to  notice  of  dishonor  on  non-payment  at  the  regular  time,  — 
it  being  contended  that  whatever  might  be  the  effect  of  this  specia) 
legislation  of  the  French  government,  as  between  the  holders  of  the 
bill  and  the  acceptors,  the  holders,  though  resident  in  France,  were 
bound,  the  bill  having  been  drawn  and  indorsed  in  England,  if  they 
desired  to  fix  the  parties  in  this  countr3%  to  present  the  bill  for  pay 
ment  at  the  time  at  which  it  fell  due  in  the  regular  course,  according 
to  its  tenor,  and  if  it  was  not  then  paid,  to  give  notice  of  its  dishonor 
—  the  right  to  insist  on  due  diligence  in  these  particulars  according  to 
the  law  of  England,  as  a  condition  precedent  of  liabilit}',  being  one 
which  it  was  not  competent  to  a  foreign  legislature  to  affect.  That,  at 
all  events,  the  transaction  between  the  defendants  and  the  plaintiff 
having  occurred  in  this  country,  their  respective  rights  and  liabilities 
must  be  determined  by  English  law.  The  implied  contract  of  indem- 
nity, which  attaches  on  non-payment  of  a  bill  of  exchange,  is  based,  it 
was  urged,  on  the  assumption  that  the  bill  will  be  presented  for  pay- 
ment at  the  time  specified  by  it ;  and  that,  in  case  of  non-payment, 
notice  of  dishonor  will  thereupon  be  given.  How  then,  it  was  asked, 
can  the  right  to  insist  on  these  as  the  conditions  of  liability  on  a  bill 
drawn  and  indorsed  in  this  country  be  modified  or  affected  by  the 
legislation  of  a  foreign  country? 

The  question  is  of  considerable  importance  and  interest  in  a  juridical 
point  of  view.  It  has  occupied  the  attention  of  the  tribunals  in  Ger- 
man}-,  Switzerland,  and  Italy.  The  High  Court  of  Leipzig  has  decided 
it  in  favor  of  the  view  presented  to  us  on  the  part  of  the  defendants. 
The  High  Court  of  Geneva  and  the  Cour  de  Cassation  of  Turin  have 
come  to  tlie  opposite  conclusion.     Our  view  coincides  with  tlieirs. 

In  considering  the  subject,  two  questions  present  themselves.  The 
first,  as  to  what  was  the  effect  of  this  special  legislation  on  the  obHga- 
tions  of  the  acceptors  ;  the  second,  as  to  what,  if  any,  was  its  effect  on 
the  rights  and  liabilities  of  the  drawers  and  indorsees  inter  se.  It  is 
with  tlie  second  question  that  we  are  more  immediately  concerned  ;  but 
the  consideration  of  the  first  may  materially  assist  us  towards  the  satis- 
factory solution  of  tlie  second. 

1  This  statement  of  facts  is  substituted  for  that  of  the  Chief  Justice.  Part  of  the 
opinion  is  omitted.  —  Ed. 


SECT.  IX.]  ROUQUETTE    V.   OVERMANN.  571 

Now  that,  so  far  as  the  French  hiw  was  concerned,  the  effect  of  the 
exceptional  legislation  in  question  was  to  substitute,  as  the  time  of 
payment,  the  expiration  of  the  period  of  grace  afforded  by  it  for  the 
time  specified  in  the  bill,  and  to  susi)end  till  then  the  legal  obligation 
of  the  acceptors  to  pa}',  cannot  be  doubted.  If  the  bill  had  been  pre- 
sented for  payment  on  the  5th  of  October,  and  payment  having  been 
refused,  an  action  had  been  brought  in  a  French  court  against  the  ao 
ceptors,  whetlier  by  a  French  or  foreign  holder,  the  plaintiff  must  bj' 
the  effect  of  the  new  law  have  been  defeated.  P>en  if  the  acceptors 
had  been  found  in  this  country,  and  an  action  had  been  brought  against 
them  in  an  English  court,  the  result  must  have  been  the  same.  It  is 
well  settled  that  the  incidents  of  presentment  and  payment  must  be 
regulated  and  determined  by  the  law  of  the  place  of  performance,  —  a 
rule  v/hich  is  strikingly  illustrated  by  the  familiar  but  pertinent  ex- 
ample of  the  effect  of  days  of  grace  being  allowed  by  the  law  of  the 
country  where  a  bill  of  exchange  is  drawn,  but  not  by  the  law  of  the 
country  where  it  is  payable,  or  vice  versa,  the  payment  of  the  bill  l>eing, 
as  is  well  known,  deferred  till  the  expiration  of  the  days  of  grace  in  the 
one  case,  but  not  so  in  the  other.  And  this  arises  out  of  the  nature  of 
the  thing,  as  the  acceptor  cannot  be  made  liable  under  any  law  but  his 
own.  It  is,  indeed,  true  that,  in  the  present  instance,  the  period  of 
grace  has  been  accorded  by  ex  post  facto  legislation.  But  this  appears 
to  us  to  make  no  difference  in  the  result,  at  all  events  so  far  as  the 
obligations  of  the  acceptors  are  concerned.  The  power  of  a  legislature 
to  interfere  with  and  modify  vested  and  existing  rights  cannot  be  ques- 
tioned, although  no  doubt  such  interference,  except  under  most  excep- 
tional circumstances,  woulct  be  contrary  to  the  principles  of  sound  and 
just  legislation. 

Such  being  the  effect  of  this  legislation  on  the  liability  of  the  ac- 
ceptor, we  have  next  to  consider  its  effect  on  the  relative  position  of 
the  drawer  and  the  drawee  or  indorsee  and  holder.  It  is  said  that, 
although  the  obligations  of  the  acceptor  may  be  determined  by  the  lex 
loci  of  the  country  in  which  the  bill  is  payable,  the  contract  as  between 
the  drawer  and  indorsee  must  be  construed  according  to  the  law  of  the 
country  where  the  bill  was  drawn  ;  and,  consequently,  that  in  order  to 
make  the  defendants,  the  drawers  of  this  bill,  liable,  the  bill  should  have 
been  presented  at  the  time  specified  in  it,  and  on  non-payment  notice 
of  dishonor  should  thereupon  have  been  given  according  to  the  re- 
quirements of  English  law.  It  is  unnecessary  to  consider  how  far  this 
position  may  hold  good  as  to  matter  of  form,  or  stamp  objections,  or 
illegality  of  consideration,  or  the  like.  We  cannot  concur  in  it  as  ap- 
plicable to  the  substance  of  the  contract,  so  far  as  presentment  for  pay- 
ment is  concerned  ;  still  less  to  a  formality  required  on  non-payment  in 
order  to  enable  the  holder  to  have  recourse  to  an  antecedent  party  to 
■  the  bill.  Applied  to  these  incidents  of  the  contract,  this  reasoning 
appears  to  us  altogether  to  overlook  the  true  nature  of  the  contract 
which  a  party  transferring  for  value  the  property  in  a  bill  of  exchange 


572  KOUQUETTE  V.    OVERMANN.  [CHAP.  X. 

makes  with  the  transferee.  All  that  he  does  is  to  warrant  that  the  bill 
shall  l)e  accepted  by  the  drawee,  and,  having  been  accepted,  shall,  on 
being  presented  at  the  time  it  becomes  due,  be  paid.  In  other  words, 
he  engages  as  suret}-  for  the  due  performance  by  the  acceptor  of  the 
obligations  which  the  latter  takes  on  himself  by  the  acceptance.  His 
liability,  therefore,  is  to  be  measured  by  that  of  the  acceptor,  whose 
surety  he  is  ;  and  as  the  obligations  of  the  acceptor  are  to  be  deter- 
mined by  the  lex  loci  of  performance,  so  also  must  be  those  of  the 
surety.  To  hold  otherwise  would  obviously  lead  to  very  startling 
anomalies.  The  holder  might  sue  the  drawer  or  indorser  before,  ac- 
cording to  the  law  applicable  to  the  acceptor,  the  bill  became  due  ;  or, 
the  acceptor  having  refused  payment  till  the  expiration  of  the  period 
of  grace  thus  afforded  him  by  the  new  law,  but  on  presentment  at  the 
end  of  that  time  having  duly  paid,  the  holder  might  claim  compensation 
against  the  indorser  in  respect  of  any  loss  he  might  have  sustained  by 
reason  of  the  delay,  although  the  obligations  of  the  acceptor  had  been 
fully  satisfied  by  the  payment  of  the  bill.  Again,  as  a  bill  may  be  in- 
dorsed in  different  countries  before  it  arrives  at  maturity,  and  each  in- 
dorsement becomes  a  fresh  undertaking  with  the  subsequent  parties  to 
the  bill  for  due  performance  by  the  acceptor,  unless  the  performance 
to  which  the  acceptor  is  bound  is  made  the  measure  and  the  limit  of 
each  indorser's  liabihty,  confusion  must  arise  in  determining  by  what 
law  the  rights  and  liabilities  of  the  different  indorsers  and  indorsees 
t)iter  se  shall  be  governed. 

It  may  be  urged,  no  doubt,  that,  though  it  may  be  true  that  the 
parties  to  a  bill  of  exchange,  payable  in  a  foreign  country,  may  be 
assumed  to  have  contracted  for  the  paym^t  of  the  bill  according  to 
the  existing  law  of  the  country  in  which  it  is  to  be  paid,  they  cannot 
be  assumed  to  have  contracted  on  the  supposition  of  that  law  being 
altered  in  the  interval  prior  to  the  bill  becoming  due  ;  that,  on  the  con- 
trary, the  intention  of  the  parties  was  that  the  bill  should  be  paid 
according  to  the  existing  law,  and  the  undertaking  of  the  party  trans- 
ferring it  was  that  it  should  be  so  paid  ;  and  that  such  being  the  effect 
of  the  indorsement,  the  obligation  of  the  indorser  cannot,  as  between 
him  and  his  indorsee,  be  affected  b}'  ex  post  facto  legislation  in  the 
foreign  country.  A  strong  argument  a/j  inconvenienti  may  also  be 
founded  on  the  serious  consequences  which  may  ensue  to  the  holder  of 
a  bill  of  exchange,  if  the  time  of  payment,  as  fixed  by  the  bill,  may 
be  postponed  by  subsequent  legislation.  He  may  require  the  money 
secured  by  the  bill  at  the  precise  moment  it  is  to  become  due  ;  he  may 
have  purchased  the  bill  for  the  purpose  of  insuring  the  command  of  it. 
The  delay  in  receiving  it  may  involve  him  in  the  greatest  embarrass- 
ment. The  indorser  ought,  therefore,  to  be  held  strictly  to  his  under- 
taking that  the  bill  shall  be  met  at  ths  time  stated  in  it,  and  contemplated 
by  the  parties  as  the  date  of  payment.  That  to  hold  otlierwise  would 
be  materially  to  shake  the  credit  and  impair  the  utility  of  negotiable 
instruments. 


SECT.  IX.]  KOUQUETTE  V.   OVERMANN.  573 

To  the  first  of  these  arguments  it  may  be  answered,  that  the  indorser 
of  a  bill  guarantees  its  pa^'ment  onh'  according  to  the  effect  of  the  bill 
at  the  place  of  payment.  He  transfers  all  the  right  the  acceptance  gives 
him  against  the  acceptor,  and  guarantees  that  the  obligations  of  the 
latter,  as  arising  from  the  acceptance,  shall  be  fulfilled.  If,  b}-  an  al- 
teration of  the  local  law  pending  the  currency  of  the  bill,  the  obligations 
of  the  acceptor  are  rendered  more  onerous,  those  of  the  indorser  be- 
come so  likewise.  Thus,  if  it  were  enacted  that  certain  da3-s  should 
be  treated  as  holidays,  and  that  a  bill  falling  due  on  anj-  one  of  them 
should  be  paid  at  an  earlier  date,  the  indorser,  on  non-payment  of  the 
bill  at  such  earlier  date,  would  become  liable  from  such  date.  On  the 
other  hand,  if  the  time  of  paj-ment  were  postponed  bj-  a  period  of  grace 
being  allowed,  or  bj'  an  enactment  that  a  bill,  falling  due  on  a  da}-  ap- 
pointed to  be  kept  as  a  holiday,  should  be  pa^'able  a  da\'  after,  —  as 
was  done  by  the  Act  of  34  &  35  Vict.  c.  17,  — the  period  at  which  the 
liability  of  the  indorser  on  non-paj'ment  by  the  acceptor  would  arise, 
would  be  pro  tanto  delaj'ed. 

To  the  second  argument  it  may  be  answered,  that  it  goes  rather  to 
the  expedienc\'  of  such  exceptional  legislation  than  to  its  etfect.  Fur- 
ther, that  the  instances  in  which  it  is  resorted  to  are  so  extremely  rare 
as  to  be  little  likely  to  have  the  effect  of  lessening  the  faith  in  nego- 
tiable instruments  or  diminishing  their  utilit}-. 

If,  then,  the  right  of  the  holder,  as  against  the  acceptor  and  the 
antecedent  parties,  can  be  thus  modified  in  respect  of  the  time  of  pay- 
ment, there  can  be  no  injustice  or  hardship  towards  them  in  holding 
him  exempted  from  the  obligations  of  presenting  the  bill  earlier  than 
his  right  of  pa3'ment  accrues,  or  of  giving  notice  of  dishonor  in  order 
to  preserve  his  right  of  recourse  to  them. 

If  the  time  of  payment,  which  is  of  the  essence  of  the  contract,  and 
the  consequent  necessit}'  for  presentment  at  the  original  time  can  thus 
be  postponed,  it  would  seem  to  follow  that,  a  fortiori,  a  formalit}',  the 
necessity  for  which  arises  only  on  the  non-fulfilment  of  his  obligation 
by  the  acceptor,  would  follow  any  alteration  introduced  by  the  law  in 
respect  of  the  time  at  which  that  obligation  was  to  be  discharged.  But, 
independently  of  this  consideration,  we  are  of  opinion,  on  general  prin- 
ciples, that  notice  of  dishonor  cannot  be  required  until  pa^'ment  has 
been  legally  demandable  of  the  acceptor,  and  has  been  refused.  It  is 
true  that  if  the  bill  had  been  presented  for  payment  at  the  time  men- 
tioned in  it,  the  acceptors  might,  possibly,  have  omitted  to  avail  them- 
selves of  the  indulgence  accorded  b}'  the  special  law,  and  might  have 
paid  at  once.  But  so  might,  possibU',  the  acceptor  of  a  bill  under 
ordinary  circumstances,  if  asked  to  do  so  as  matter  of  grace  or  of 
special  arrangement.  The  holder  of  a  bill  of  exchange  cannot  be  held 
bound  to  present  lit  for  payment  till  it  becomes  legall}'  payable,  that  is 
to  say,  pa3-able  as  matter  of  right  and  not  of  option.  Neither,  there- 
fore, can  he  be  called  upon  to  give  notice  of  non-payment  to  the  indorser 
before  the  time  when  his  right  to  demand  payment  of  the  acceptor  has 


574  ROUQUETTE   V.    OYEKMANN.  [CHAP.  X. 

accrued,  and  the  liabilit}'  of  the  indorser,  consequent  on  such  refusal, 
has  arisen.  There  cannot  be  two  ditferent  limes  at  which  a  bill  of  ex- 
chant^e  becomes  payable.  Suppose  the  holder  had  presented  this  bill 
for  payment  at  the  time  specified  in  it,  and  payment  had  been  refused 
by  reason  of  the  extension  of  time  afforded  by  the  new  law,  such  pre- 
sentment would  certainly  not  have  dispensed  with  the  necessity  of  pre- 
senting the  bill  anew,  when  the  period  of  grace  expired,  and  the  liability 
of  the  acceptors  had  arisen  ;  and  the  omission  to  present  it  then  would 
have  had  the  effect  of  discharging  the  indorser.  If  presentment  at  the 
expiration  of  the  time  allowed  by  the  special  law  was  necessary  to  fix 
the  legal  liability  of  the  acceptor  and  the  indorser,  it  was  only  on  such 
presentment  and  non-payment  thereupon  that  the  bill  could  be  treated 
as  dishonored,  or  that  notice  of  its  dishonor  could  be  effectually  given 
so  as  to  charge  the  indorser.  Another  ground  for  holding  that  present- 
ment and  notice  of  dishonor  at  the  earlier  period  were  not  necessary 
to  preserve  the  right  of  recourse  against  the  defendants,  as  drawers 
and  indorsers,  is  to  be  found  in  the  reasons  assigned  for  requiring  pre- 
sentment at  the  appointed  time  and  notice  of  dishonor  immediately  on 
payment  being  refused.-  The  reason  given  is,  that  the  drawer,  whom 
it  is  intended  to  make  liable,  may  liave  the  earliest  opportunity  of  with- 
drawing his  assets  from  the  acceptor,  or  resorting  to  such  other  reme- 
dies against  him  as  the  law  may  afford.  But  in  such  a  case  as  the 
present,  as  the  acceptor  remains  bound  to  the  holder  to  pay  the  bill 
when  presented  at  the  time  it  becomes  legally  due,  the  drawer  could 
not  withdraw  from  him  the  means  of  satisfying  that  liability,  or  take 
steps  against  him  for  non-fulfilment  of  an  obligation  not  as  yet  capable 
of  being  legally  enforced.   .   .   . 

On  these  grounds  we  are  of  opinion  that  the  presentment  for  pa}-- 
ment  was  made,  and  the  notice  of  dishonor  given,  at  the  right  time, 
and  that  the  foundation  on  which  the  defence  rests  consequently  fails. 

Our  judgment,  therefore,  must  be  for  the  plaintiff. 

Judgment  for  the  plaintiff ^ 

1  The  time  for  presentment  for  payment  is  governed  by  the  law  of  the  place  of 
payment.  Pierce  v.  Insdeth,  106  U.  S.  546;  Pryor  v.  Wright,  14  Ark.  189;  Snovt  v. 
PeVliins,  2  Mich.  238  (semhle)  ;  Kentucky  Com.  Bk.  v.  Barksdale,  36  Mo.  563;  Walsh 
V.  Dart,  12  Wis.  633;  1  Clunet,  100  (Austrian  Consular  Ct.,  15  April,  '72) ;  1  Clunet, 
149  (Sweden,  14  May,  '73);  1  Clunet,  209  (Brussels,  29  Apr.  '72);  21  Clunet,  370 
(Brussels,  14  June, '93) ;  24  Clunet,  827  (Germ.  U  Dec.  '93).  Contra,  1  Clunet,  185 
(R.  O.  U.  G.  21  Feb.  '71).  — Ec. 


SECT.  IX.]         LIVERPOOL   STEAM   CO.    V.    PHENIX   INS.    CO.  575 

BOWEN   V.   NEWELL. 
Court  of  Appeals,  New  York.     1855. 

[Reported  13  New  iV^-,  290.] 

Johnson,  J.  By  the  law  of  the  State  of  Connecticut,  where  this 
paper  was  to  be  paid,  it  was  payable  upon  the  day  when,  by  its  tenor, 
it  became  due,  without  grace.  What  the  law  of  a  foreign  country  is,  can 
only  be  determined  upon  evidence ;  it  is  a  question  of  fact.  The 
Superior  Court  has  decided  upon  evidence  derived  from  the  best 
sources,  and  of  the  most  unquestionable  character,  that  such  is  the 
law  of  Connecticut,  and  we  see  no  ground  to  doubt  the  correctness  of 
that  conclusion.  Nor  is  there  any  more  room  to  doubt  that  by  the  law 
of  this  State,  the  law  of  Connecticut  is  to  control  and  govern,  in  respect 
to  the  allowance  of  grace  upon  a  bill  of  exchange  or  check  drawn  upon 
and  payable  at  a  Bank  in  that  State.  (Story,  Conf.  of  Laws,  2d  ed., 
§  36L) 

The  judgment  should  be  affirmed.  Judgment  accordingly. 


SECTION   IX.  —  {B)  Obligations  of  Carriers. 

LIVERPOOL   &   G.  W.    STEAM   CO.    v.   PHENIX  INS.  CO. 

Supreme  Court  of  the  United  States.     1889. 

[Reported  129  United  States,  397.] 

Gray,  J.  This  is  an  appeal  by  a  steamship  compan^^  from  a 
decree  rendered  against  it  upon  a  libel  in  admiralt}*,  "  in  a  cause  of 
action  arising  from  breach  of  contract,"  brought  b}-  an  insurance 
company,  claiming  to  be  subrogated  to  the  rights  of  the  owners  of 
goods  shipped  on  board  the  "  Montana,"  one  of  the  appellant's  steam- 
ships, at  New  York,  to  be  carried  to  Liverpool,  and  lost  or  damaged 
by  her  stranding,  because  of  the  negligence  of  lier  master  and  officers, 
in  Holyhead  Bay  on  the  coast  of  Wales,  before  reaching  her  destination. 

In  behalf  of  the  appellant,  it  was  contended  that  the  loss  was 
caused  by  perils  of  the  sea,  without  any  negligence  on  the  part  of 
master  and  officer  ;  that  the  appellant  was  not  a  common  carrier ;  that 
it  was  exempt  from  liability  by  the  terms  of  the  bills  of  landing ;  and 
that  the  libellant  had  not  been  subrogated  to  the  rights  of  the  owners 
of  the  goods.  .   .  . 

The  circumstances  of  the  case,  as  found  b}'  the  Circuit  Court,  clearly 
warrant,  if  they  do  not  require,  a  court  or  jury,  charged  with  the  duly 
of  determining  issues  of  fact,  to  find  that  the  stranding  was  owing  to 
the  negligence  of  the  officers  of  the  ship.  .   .  . 


576  LIVERPOOL    STEAM   CO.    V.    PHENIX   INS.    CO.  [CHAP.  X. 

We  are  then  brought  to  the  consideration  of  the  principaLjlUfistion 
InT&e  case,  namely,  the  validity  and  effect  of  thatT  clause  in  eacli  bill 
of  lading  by  which  the  appellant  undertook  to  exempt  itself  from  ail 
l^tJiJOliyUjlllL)    fui'  loijs  or  dtima^e  by  penis  of  the  sea,  arising  from" 
""negligence  of  the  master  and  crew  of  the  ship. 

The  quosLion  iipp(iars  to  us  to  be  substantially  determined  by  the 
judgment  of  this  court  in  Railroad  Co.  v.  Lockwood,  17  Wall.  357.  .  .  . 

It  was  argued  for  the  appellant,  that  the  law  of  New  York,  the 
lex  loci  contractus,  was  settled  by  recent  decisions  of  the  Court  of 
Appeals  of  that  State  in  favor  of  the  right  of  a  carrier  of  goods  or 
passengers,  by  land  or  water,  to  stipulate  for  exemption  from  all 
liability  for  bis  own  negligence.  Mynard  v.  Syracuse  Railroad,  71 
N.  Y.   180  ;  Spinetti  v.  Atlas  Steamship  Co.,  80  N.  Y.  71. 

But  on  this  subject,  as  on  any  question  depending  upon  mercantile 
law  and  not  upon  local  statute  or  usage,  it  is  well  settled  that  the 
courts  of  the  United  States  are  not  bound  by  decisions  of  the  courts  of 
the  State,  but  will  exercise  their  own  judgment,  even  when  their  jurisdic- 
tion attaches  only  by  reason  of  the  citizenship  of  the  parties,  in  an  action 
at  law  of  which  the  courts  of  the  State  have  concurrent  jurisdiction, 
and  upon  a  contract  made  and  to  be  performed  within  the  State. 
Railroad  Co.  v.  Lockwood,  17  Wall.  357,  368;  Myrick  v.  Michigan 
Central  Railroad,  107  U.  S.  102  ;  Carpenter  v.  Providence  Washington 
Ins.  Co.,  16  Pet.  495,  511  ;  Swift  v.  Tyson,  16  Pet.  1  ;  Railroad  Co. 
V.  National  Bank,  102  U.  S.  14  ;  Burgess  v.  Seligman,  107  U.  S.  20, 
33  ;  Smith  v.  Alabama,  124  U.  S.  365,  478  ;  Bucher  v.  Cheshire  Rail- 
road, 125  U.  S.  555,  583.  The  decisions  of  the  State  courts  certainly 
cannot  be  allowed  anj-  greater  weight  in  the  Federal  courts  when 
exercising  the  admiralty  and  maritime  jurisdiction  exclusively  vested  in 
them  b}-  the  Constitution  of  the  United  States. 

It  was  also  argued  in  behalf  of  the  appellant,  that  the  validity  and 
effect  of  this  contract,  to  be  performed  principally  upon  the  high  seas, 
should  be  governed  by  the  general  maritime  law,  and  that  by  that  law 
such  stipulations  are  valid.     To  this  argument  there  are  two  answers. 

First.  There  is  not  shown  to  be  anj-  such  general  maritime  law. 
The  industr}-  of  the  learned  counsel  for  the  appellant  lias  collected 
articles  of  codes,  decisions  of  courts  and  opinions  of  commentators  in 
France,  Italy,  Germany,  and  Holland,  tending  to  show  that,  by  the 
law  administered  in  those  countries,  such  a  stipulation  would  be  valid. 
But  those  decisions  and  opinions  do  not  appear  to  have  been  based  on 
general  maritime  law,  but  largely,  if  not  wholly,  upon  [)ruvisi(>ns  or 
omissions  in  the  codes  of  the  particular  country  ;  and  it  has  been  said 
hy  many  jurists  that  the  law  of  France,  at  least,  was  otherwise.  See 
2  Pardessus  Droit  Commercial,  no.  542  ;  4  Goujet  &  Meyer  Diet.  Droit 
Commercial  (2d  ed.)  Voiturier,  nos.  1,  81;  2  Troplong  Droit  Civil, 
nos.  894,  910,  942,  and  other  books  cited  in  Peninsular  &  OiiiMitai  Co. 
V.  Shand,  3  Moore  P.  C.  (n.  s.)  272,  278,  285,  286  ;  25  Laurent  Droit 
Civil  Franqais,  no.  532 ;  Mellish,  L.  J.,  in  Cohen  v.  Southeastern 
Railway,  2  Ex.  D.  253,  257. 


SECT.  IX.]         LIVERPOOL   STEAM   CO.    V.    PHENIX   INS.    CO.  57T 

Second.  The  general  maritime  law  is  in  force  in  this  country,  or  in 
any  other,  so  far  only  as  it  has  been  adopted  by  the  laws  or  usages 
thereof  ;  and  no  rule  of  the  general  maritime  law  (if  any  exists)  con- 
cerning the  validity  of  such  a  stipulation  as  that  now  before  us  has 
ever  been  adopted  in  the  United  States  or  in  England,  or  recognized  in 
the  admiralt}'  courts  of  either.  The  Lotta wanna,  21  Wall.  558  ;  The 
Scotland,  105  U.  S.  2i,  29,  33;  The  Belgenland,  114  U.  S.  355,  369  ; 
The  Harrisburg,  119  U.  S.  199  ;  The  Hamburg,  2  Moore  P.  C.  (n.  s.) 

289,  319  ;  s.  c.  Brown.  &  Lush.  253,  272  ;  Lloyd  v.  Guibert,  L.  R.  1 
Q.  B.  115,  123,  124;  s.  c.  6  B.  &  S.  100,  134, 'l36;  The  Gaetano  & 
Maria,  7  P.  D.  137,  143. 

It  was  argued  in  this  court,  as  it  had  been  below,  that  as  the 
contract  was  to  be  chiefly  performed  on  board  of  a  British  vessel  and 
to  be  finail}'  completed  in  Great  Britain,  and  the  damage  occurred  in 
Great  Britain,  the  case  should  be  determined  by  the  British  law,  and 
that  by  that  law  the  clause  exempting  the  appellant  from  liability  for 
losses  occasioned  by  the  negligence  of  its  servants  was  valid.  .   .  . 

It  appears  by  the  cases  cited  in  behalf  of  the  appellant,  and  is  hardly 
denied  by  the  appellee,  that  under  the  existing  law  of  Great  Britain,  as 
declared  by  the  latest  decisions  of  her  courts,  common  carriers,  by  land 
or  sea,  except  so  far  as  they  are  controlled  by  the  provisions  of  the 
Railwa_y  and  Canal  Traffic  Act  of  1854,  are  permitted  to  exempt  tliem- 
selves  b}'  express  contract  from  responsibility  for  losses  occasioned  by 
negligence  of  their  servants.  The  Duero,  L.  R.  2  Ad.  &  Ec.  393  ; 
Taubman  v.  Pacific  Co.,  26  Law  Times  (n.  s.)  704;  Steel  v.  State 
Line  Steamship  Co.,  3  App.  Cas.  72  ;  Manchester  &c.  Railway  v.  Brown, 
8  App.  Cas.  703.  It  may  therefore  be  assumed  that  the  stipulation 
now  in  question,  though  invalid  by  our  law,  would  be  valid  according 
to  the  law  of  Great  Britain. 

The  general  rule  as  to  what  law  should  prevail,  in  case  of  a  conflict 
of  laws  concerning  a  private  contract,  was  concisely  and  exactly 
stated  before  the  Declaration  of  Independence  by  Lord  Mansfield  (as 
reported  by  Sir  William  Blackstone,  who  had  been  of  counsel  in  the 
case)  as  follows:  "The  general  rule,  established  ex  comitate  et  Jure"^ 
ffentium,  is  that  the  place  where  the  contract  is  made,  and  not  where 
the  action  is  brought,  is  to  be  considered  in  expounding  and  enforcing 
the  contract.  But  this  rule  admits  of  an  exception,  when  the  parties 
(at  the  time  of  making  the  contract)  had  a  view  to  a  different  king- 
dom.'' Robinson  v.  Bland,  1  W.  Bl.  234,  256,  258 ;  s.  c.  2  Bur.  / 
1077,   1078.  ' 

The  recent  decisions  by  eminent  English  judges,  cited  at  the  bar,  so 
clearly  affirm  and  so  strikingly  illustrate  the  rule,  as  applied  to  cases 
more  or  less  resembling  the  case  before  us,  that  a  full  statement  of 
them  will  not  be  inappropriate. 

In  Peninsular  &  Oriental  Co.   v.  Shand,  3  Moore  P.  C.  (n.  s.)  272, 

290,  Lord  Justice  Turner,  delivering  judgment  in  the  Privy  Council, 
reversing  a  decision  of  the  Supreme  Court  of  Mauritius,  said,   "  The 

37 


578  LIVEEPOOL    STEAM    CO.    V.   PHENIX   INS.   CO.  [CHAP.  X. 

general  rule  is,  that  the  law  of  the  country  where  a  contract  is  made 
governs  as  to  the  nature,  the  obligation,  and  the  interpretation  of  it. 
The  parties  to  a  contract  are  either  the  subjects  of  the  power  there 
ruhng,  or  as  temporary  residents  owe  it  a  temporary  allegiance;  in 
either  case  equally,  they  must  be  understood  to  submit  to  the  law  there 
prevaihng,  and  to  agree  to  its  action  upon  their  contract.  It  is,  of 
course,  immaterial  that  such  agreement  is  not  expressed  in  terms  ;  it  is 
equally  an  agreement  in  fact,  presumed  de  jure,  and  a  foreign  court 
interpreting  or  enforcing  it  on  any  contrary  rule  defeats  the  intention 
of  the  parties,  as  well  as  neglects  to  observe  tlie  recognized  comity  of 
nations." 

It  was  accordingly  held,  that  the  law  of  England,  and  not  the  French 
law  in  force  at  Mauritius,  governed  the  validity  and  construction  of  a 
contract  made  in  an  English  port  between  an  English  company  and  an 
English  subject  to  carry  him  hence  by  way  of  Alexandria  and  Suez  to 
Mauritius,  and  containing  a  stipulation  that  the  company  should  not  be 
liable  for  loss  of  passengers'  baggage,  which  the  court  in  Mauritius  had 
held  to  be  invalid  by  the  Frencli  law.     3  Moore  P.  C.  (n.  s.)  278. 

Lord  Justice  Turner  observed,  that  it  was  a  satisfaction  to  find  that 
the  Court  of  Cassation  in  France  had  pronounced  a  judgment  to  the 
same  effect,  under  precisely  similar  circumstances,  in  the  case  of  a 
French  officer  taking  passage  at  Hong  Kong,  an  English  possession, 
for  Marseilles  in  France,  under  a  like  contract,  on  a  ship  of  the  same 
company,  which  was  wrecked  in  the  Red  Sea,  owing  to  the  negligence 
of  her  master  and  crew.  Julien  v.  Peninsular  &  Oriental  Co.,  im- 
perfectly stated  in  3  Sloore  P.  C.  (n.  s.)  282,  note,  and  fully  reported 
in  75  Journal  du  Palais  (1864),  225. 

The  case  of  Lloyd  v.  Guibert,  6  B.  &  S.  100 ;  s.  c.  L.  R.  1  Q.  B. 
115,  decided  in  the  Queen's  Bench  before,  and  in  the  Exchequer 
Chamber  after,  the  decision  in  the  Privy  Council  just  referred  to, 
presented  this  peculiar  state  of  facts  :  A  French  ship  owned  by  French- 
men was  chartered  by  tlie  master,  in  pursuance  of  his  general  author- 
ity as  such,  in  a  Danish  AVest  India  island,  to  a  British  subject,  wlio 
knew  her  to  be  French,  for  a  voyage  from  St.  Marc  in  Hayti  to 
Havre,  London,  or  Liverpool  at  the  charterer's  option,  and  he  shipped 
a  cargo  from  St.  Marc  to  Liverpool.  On  the  voyage,  the  ship  sustained 
damage  from  a  storm  which  compelled  her  to  put  into  a  Portuguese 
port.  °  There  the  master  lawfully  borrowed  money  on  bottomry,  and 
repaired  the  ship,  and  she  carried  her  cargo  safe  to  Liverpool.  The 
bondholder  proceeded  in  an  English  court  of  admiralty  against  the 
ship,  freight  and  cargo,  which  being  insufficient  to  satisfy  the  bond,  he 
brouglit  an  action  at  law  to  recover  tiie  deficiency  against  the  owners 
of  the  ship;  and  they  ab.i.ndoned  the  ship  and  freiLrht  in  such  a 
manner  as  by  the  French  law  absolved  them  from  liability.  It  was 
held,  that  the  Frencli  law  governed  the  case,  and  therefore  the 
plaintiff  could  not  recover. 

It  thus  appears  that  in  that  case  the  question  of  the  intent  of  the 


SECT.  IX.]         LIVERPOOL   STEA.M   CO.    V.    PHENIX   INS.    CO.  579 

parties  was  complicated  with  that  of  the  lawful  authority  of  the  master ; 
and  the  decision  in  the  Queen's  Bench  was  put  wholly  upon  the  ground 
that  the  extent  of  his  authority  to  bind  the  ship,  the  freight  or  the 
owners,  was  limited  by  the  law  of  the  home  port  of  the  ship,  of  which 
her  flag  was  sufficient  notice.  6  B.  &  S.  100.  That  decision  was  in 
accordance  with  an  earlier  one  of  Mr.  Justice  Story,  in  Pope  v. 
Nickerson,  3  Story,  465;  as  well  as  with  later  ones  in  the  Privy 
Council,  on  appeal  from  the  High  Court  of  Admiralty,  in  which  the 
validity  of  a  bottomry  bond  has  been  determined  by  the  law  prevailing 
at  the  home  port  of  the  ship,  and  not  by  the  law  of  the  port  where  the 
bond  was  given.  The  Karnak,  L.  R.  2  P.  C.  505,  512 ;  The  Gatano  & 
Maria,  7  P.  D.  137.  See  also  The  Woodland,  7  Bened.  110,  118,  14 
Blatchf.  499,  503,  and  104  U.  S.  180. 

The  judgment  in  the  Exchequer  Chamber  in  Lloyd  v.  Guibert  was 
put  upon  somewhat  broader  ground.  Mr.  Justice  Willes,  in  delivering 
that  judgment,  said  :  "  It  is  generally  agreed  t.lint  the  liw  of  the  |>lace 
■yylioj^o  fi^»  pr>ni-rQf>t  is  made  is  yrima  facie  that  which  the  pailiiea- 
intended,  or  ought  to  be  presumed  to  have  jxioH^A^^  ^-^^^  footing  upon 
■vyEiciTthe^^  dealt,_and_tbaL7such  law^ou^Jiti  t'^^'-^f'^'-'^  ^^^  pr^vnil  in  thp 
aljsence  of  circumstances  indicating  a  different  intention,  as,  for 
instance^Jjiat  the  contract  is  to_be  entirely  performed  elsewherej^QH 
that  the  subject-matter  is  immovable  propgrty^tuated  in  another 
country,  and  so  forth ;  which  latter,  though  sometimes  treated  as 
distinct  rules,  appear  more  properly  to  be  classed  as  exceptions  to  the 
more  general  one,  by  reason  of  the  circumstances  indicating  an  inten- 
tion to  be  bound  by  a  law  different  from  that  of  the  place  where  the 
contract  is  made ;  which  intention  is  inferred  from  the  subject-matter 
and  from  the  surrounding  circumstances,  so  far  as  they  are  relevant  to 
construe  and  determine  the  character  of  the  contract."  L.  R.  1  Q.  B. 
122,  123,  6  B.  &  S.  133. 

It  was  accordingly  held,  conformably  to  the  judgment  in  Peninsular 
&  Oriental  Co.  v.  Shand,  above  cited,  that  the  law  of  England,  as  the 
law  of  the  place  of  final  performance  or  port  of  discharge,  did  not 
govern  the  case,  because  it  was  "•  manifest  that  what  was  to  be  done  at 
Livei'pool  was  but  a  small  portion  of  the  entire  service  to  be  rendered, 
and  that  the  character  of  the  contract  cannot  be  determined  thereb}'," 
although  as  to  the  mode  of  delivery  the  usages  of  Liverpool  would 
govern.  L.  R.  1  Q.  B.  125,  126  ;  6  B.  &  S.  137.  It  was  then  observed 
that  the  law  of  Portugal,  in  force  where  the  bottomry  bond  was  given, 
could  not  affect  the  case  ;  that  the  law  of  Hayti  had  not  been  men- 
tioned or  relied  upon  in  argument;  and  that  "  in  favor  of  the  law  of 
Denmark,  there  is  the  cardinal  fact  that  the  contract  was  made  in 
Danish  territory,  and  further,  tliat  the  first  act  done  towards  perform- 
ance was  weighing  anchor  in  a  Danish  port ;  "  and  it  was  finally,  upon 
a  view  of  all  the  circumstances  of  the  case,  decided  that  the  law  of 
France,  to  which  the  ship  and  her  owners  belonged,  must  govern  the 
question  at  issue. 


580  LIVERPOOL   STEAM   CO.    V.   PHENIX   INS.    CO.  [CHAP.  X. 

The  decision  was,  in  substance,  tliat  the  presumption  that  the  con- 
tract should  be  governed  b}-  the  law  of  Denmark,  in  force  where  it  was 
made,  was  not  overcome  in  favor  of  the  law  of  England,  by  the 
fact  that  the  voyage  was  to  an  English  port  and  the  charterer  an 
Englishman,  nor  in  favor  of  the  law  of  Portugal  by  the  fact  that 
the  bottomry  bond  was  given  in  a  Portuguese  port ;  but  that  tlie 
ordinary  presumption  was  overcome  by  the  consideration  that  French 
owners  and  an  English  charterer,  making  a  charter  party  in  the  French 
language  of  a  French  ship,  in  a  port  where  both  were  foreigners,  to  be 
performed  partly  there  by  weighing  auclior  for  the  port  of  loading  (a 
place  where  both  parties  would  also  be  foreigners),  partly  at  that  port 
bv  taking  the  cargo  on  board,  principally  on  the  high  seas,  and  partly 
bv  final  delivery  in  the  port  of  discharge,  must  have  intended  to  look 
to  the  law  of  France  as  governing  the  question  of  the  liabihty  of  the 
owner  beyond  the  value  of  the  ship  and  freiglit.^  .  . 

This  review  of  the  princijoal  cases  demonstrates  that  accordlng-JO- 
the  great  preponderance,  if  not  the  uniform  concurrence,  of  authority, 
Ihe  general  rule,  that  the  nature,  the  obligation,  and  the  interpretation 
"of  a  contract  are  to  be  governed  by  the  law  of  the  place  where.it  is   _ 
made,  unless  the  parties  at  the  time  of  making  it  have^oraie  other  law  _ 
in  view,_requires  a  cbtttract  of  affreightment,  made   in  one  country  _ 
"betweeiT^tizens  or  residents  thereof^   and  the  performance  of^vrhich 
begins^  there,  to  be  governed  by  the  law  of  that  country,  unless  the 
'  parties,  when    entering  into  the   contract,  clearly  manifest  a  mutual 
''intention  that  it  shall  be  governed  by  the  law  of  some  other  country. 
There  does  not  appear  to  us  to  be  anything  in  either  of  the  bills  of 
lading,  in  the  present  case,  tending  to  show  that  the  contracting  parties 
looked  to  the  law  of  England,  or  to  any  other  law  than  that  of  the 
place  where  the  contract  was  made. 

The  bill  of  lading  for  the  bacon  and  hams  was  made  and  dated  at 
New  York,  and  signed  by  the  ship's  agent  there.  It  acknowledges 
that  the  goods  have  been  shipped  "  in  and  upon  the  steamship  called 
'  Montan'a,'  now  lying  in  the  port  of  New  York  and  bound  for  the  port 
of  Liverpool,"  and  are  to  be  delivered  at  Liverpool.  It  contains  no 
indication  that  the  owners  of  the  steamship  are  English,  or  that  their 
principal  place  of  business  is  in  P:ngland.  rather  than  in  this  country. 
On  the  contrary,  the  only  description  of  the  line  of  steamships,  or  of 
the  place  of  business  of  their  owners,  is  in  a  memorandum  in  the 
maro-in,  as  follows:  "  Guion  Line.  United  States  Mail  Steamers. 
New  York:  29  Broadway.     Liverpool:   11  Rumford  St."     No  distinc- 

1  The  learned  Judge  here  examined  the  following  cases  :  Chartered  Bank  of 
India  r.  Netherlands  S.  X.  Co.,  9  Q.  B.  D.  118,  10  Q.  B.  D.  521  ;  Jacobs  v.  Credit 
Lvonnais  12  Q.  B.  D.  589;  Watts  r.  Camors,  115  U.  S.  353;  Pope  v.  Nickerson,  3 
Storv  465  ;  Morgan  v.  R.  R.,  2  Woods,  244;  Hale  v.  N.  J.  S.  N.  Co.,  15  Conn.  .5.38  ; 
Dvke'r.  Erie  Rv.,  45  N.  Y.  113  ;  McDaniel  v.  C.  &  N.  W.  Ry.,  24  la.  412  ;  Pennsyl- 
vania Co.  ('.  Fai'rchild,  09  111.  260;  Brown  v.  C.  &  A.  R.  R.,  83  Pa.  MG  ;  Curtis  r.  1).  & 
L.  R.  R,  74  N.  Y.  116;  Barter  v.  Wheeler,  49  N.  H.  9;  Gray  v.  Jackson,  51 
N.  H.  9.  —  Ed. 


SECT.  IX.J         LIVERPOOL    STEAM   CO.    V.    PHENIX   INS.    CO.  5S1 

tion  is  made  between  the  places  of  business  at  New  York  and  at 
Liverpool,  except  that  the  former  is  named  first.  The  reservation  of 
libertv,  in  case  of  an  interruption  of  the  voyage,  "  to  transiiip  the 
goods  by  any  other  steamer,"  would  permit  transhipment  into  a  vessel 
of  any  other  line,  English  or  American.  And  general  average  is  to  be 
computed,  not  by  any  local  law  or  usage,  but  "  according  to  York- 
Antwerp  rules,"  which  are  the  rules  drawn  up  in  1864  at  York  in 
England,  and  adopted  in  1877  at  Antwerp  in  Belgium,  at  international 
conferences  of  representatives  of  the  more  important  mercantile  associa- 
tions of  the  United  States,  as  well  as  of  the  maritime  countries  of 
Europe.     Lowndes  on  General  Average  (3d  ed.),  Appendix  Q. 

The  contract  being  made  at  New  York,  the  shipowner  liaving__a^ 
place  of  business  there,  and  the  shipper  being  an  American,  l»oth_ 
parties  must  be  presumed  to  have  submitted  themselves  to  the  law 
there  prevailing,  and  to  have  agreed  to  its  aciion  upon  their  contract. 
The  contract  is  a  single  one,  and  its  principal  object,  the  transporta- 
tion of  the  goods,  is  one  continuous  act,  to  begin  in  the  port  of  New- 
York,  to  be  chiefly  performed  on  the  high  seas,  and  to  end  at  the  port 
of  Liveroool.  The  facts  that  the  goods  are  to  be  delivered  at  Liver- 
pool, and  the  freight  and  primage,  tEerefore,  payable  there  in  sterlipg 
currency,  do  not  make  the  contract  an  English  contract,  or  refer  to  the 
English  law  the  question  ofTEe^iability  of  the  carrier  for  the  negligence 
jxtl.^e_master  and  crew  in  the 'course  of  the  voyage.  Peninsular  & 
Oriental  Co.  v.  Shand,  Llo3'd  v.  Guibert,  and  Chartered  Bank  of  India 
V.  Netherlands  Steam  Navigation  Co.,  before  cited. 

There  is  even  less  ground  for  holding  the  three  bills  of  lading  of  the 
cotton  to  be  English  contracts.  Each  of  them  is  made  and  dated  at 
Nashville,  an  inland  cit}',  and  is  a  through  bill  of  lading,  over  the 
Louisville  and  Nashville  Railroad  and  its  connections,  and  by  the 
Williams  and  Guion  Steamship  Compan}',  from  Nashville  to  Liver- 
pool ;  and  the  whole  freight  from  Nashville  to  Liverpool  is  to  be  "  at 
the  rate  of  fifty-four  pence  sterling  per  100  lbs.  gross  weight."  It  is 
stipulated  that  the  liabilit}"  of  the  Louisville  and  Nashville  Railroad 
and  its  connections  as  common  carriers  "  terminates  on  delivery  of  the 
goods  or  propert}'  to  the  steamship  company  at  New  York,  when  the 
liabilit}^  of  the  steamship  commences,  and  not  before  ;  "  and  that  "  the 
property  shall  be  transported  from  the  port  of  New  York  to  the  port  of 
Liverpool  by  the  said  steamship  company,  with  liberty  to  ship  b\-  any 
other  steamship  or  steamship  line."  And  in  the  margin  is  this  signifi- 
cant reference  to  a  provision  of  the  statutes  of  the  United  States, 
applicable  to  the  ocean  transportation  onl}' :  "Attention  of  shippers 
IS  CALLED  TO  THE  ACT  OF  CoNGRESS  OF  1851  :  '  An}'  pcrsou  Or  persous 
shipping  oil  of  vitriol,  unslacked  lime,  inflammable  matches  [or]  gun- 
powder, in  a  ship  or  vessel  taking  cargo  for  divers  persons  on  freight, 
without  delivering  at  the  time  of  shipment  a  note  in  writing,  express- 
ing the  nature  and  character  of  such  merchandise,  to  the  master,  mate, 
or  officer,  or  person  in  charge  of  the  loading  of  the  ship  or  vessel,  shall 


582  LIVERPOOL    STEAM    CO.    V.   PHENIX   INS.    CO.  [CIIAP.  X. 

forfeit  to  the  United  States  one  thousand  dollars.'  "     Act  of  March  3, 
1851,  c.  43,  §  7  ;  9  Stat.  G36;  Rev.  Stat.  §  4288. 

It  was  argued  that  as  each  bill  of  lading,  drawn  up  and  signed  b}' 
the  carrier  and  assented  to  by  the  shipper,  contained  a  stipulation 
that  the  carrier  should  not  be  liable  for  losses  by  perils  of  the  sea 
arising  from  the  negligence  of  its  servants,  both  parties  must  be 
presumed  to  have  intended  to  be  bound  by  that  stipulation,  and  must 
therefore,  the  stipulation  being  void  by  our  law  and  valid  by  the  law  of 
England,  have  intended  that  their  contract  should  be  governed  by  the 
English  law  ;  and  one  passage  in  the  judgment  in  Peninsular  &  Oriental 
Co.  V.  Shand  gives  some  color  to  the  argument.  3  Moore  P.  C.  (n.  s.) 
291.  But  the  facts  of  the  two  cases  are  quite  different  in  this  respect. 
In  that  case,  effect  was  given  to  the  law  of  England,  where  the  contract 
was  made  ;  and  both  parlies  were  English,  and  must  be  held  to  have 
known  the  law  of  their  own  country.  In  this  case,  the  contract  was 
made  in  this  country,  between  parties  one  residing  and  the  other  doing 
business  here  ;  and  the  law  of  England  is  a  foreign  law,  which  the 
American  shipper  is  not  presumed  to  know.  Both  parties  or  either  of 
them  may  have  supposed  the  stipulation  to  be  valid  ;  or  both  or  either 
may  have  known  that  by  our  law,  as  declared  by  this  court,  it  was 
void.  In  either  aspect,  there  is  no  ground  for  inferring  that  the 
shipper,  at  least,  had  any  intention,  for  the  purpose  of  securing  its 
validity,  to  be  governed  by  a  foreign  law,  which  he  is  not  shown,  and 
cannot  be  presumed,  to  have  had  any  knowledge  of. 

Our  conclusion  on  the  principal  question  in  the^case  may  bg  summed 
up'~thus":  E^ach  of  the  bills  of  Lading  is  an  Americ^and  not  an  English 
"ooatract,  and,  'feo  tar  as  concerns  tlie  oDligation  to  carry  the  goods  iii_ 
safety,  is  to  be  governed  by  the  American  law,  and  not  by  the  law, 
municipal  or  maritime,  or  any  other  country.     By  our  law,  as  declared^ 
"**itrrTHTs^court,  the  stipulation  by  which   the   appellant   undertook   to 
"^exempritself  from  liahllitylbr  the  negligence  of  its  servants  is  contrary 
"^to  public  policy  and  therefore  void  ;  and  the  loss  of  the  goods  was  a 
breach  of  the  contract,  for  which "Ee  shipper  might  maintain  a  suit_ 
asniiist  the  carrier.     This  being  so,  the  fact  that  the  place  where  the 
v.-~-il  went  ashore,  in  consequence  of  the  negligence  of  the  master  and 
^oliirers  in  the  prosecution  of  the  voyage,  was  upon  the  coast  of  Great 
""   Britain,  is  quite   iinniaterKil.      ~~ 

This  conclusion  is  in  accordance  with  the  decision  of  Judge  Brown 
in  the  District  Court  of  the  United  States  for  the  Southern  District  of 
New  York  in  the  Brantford  City,  29  Fed.  Rep.  373,  which  appears  to 
us  to  proceed  upon  more  satisfactory  grounds  than  the  opposing 
decision  of  INIr.  Justice  Chitty,  sitting  alone  in  the  Chancery  Division, 
made  since  this  case  was  argued,  and,  so  far  as  we  are  informed,  not 
reported  in  the  Law  Reports,  nor  affirmed  or  considered  by  any  of  the 
higher  courts  of  Great  Britain.  In  re  Missouri  Steamship  Co.,  58 
Law  Times  (n.  s.)  377. 

The  present  case  does  not  require  us  to  determine  what  effect  the 


SECT.  IX.]  DIKE   V.    ERIE    RAILWAY.  583 

courts  of  the  United  States  should  give  to  this  contract,  if  it  had 
expressly-  provided  that  any  question  arising  under  it  should  be  gov- 
erned by  the  law  of  England.^ 


DIKE  V.    ERIE   RAILWAY. 

Court  of  Appeals,  New  Yokk.     1871. 

{Reported  45  NewYork,  113.] 

Appeals  from  the  General  Term  of  the  Supreme  Court  in  the  Second 
District  in  Dike's  case,  and  from  the  General  Term  of  the  Supreme 
Court  in  the  Sixth  District  in  Floyd's  case. 

These  actions  were  to  recover  damages  for  personal  injuries  sus- 
tained by  the  plaintiffs  while  passing  over  the  road  of  the  defendant  as 
passengers,  caused  by  the  negligence  of  the  defendant's  servants  and 
agents.  The  defendant  is  a  corporation  existing  under  the  laws  of  the 
State  of  New  York,  owning  and  operating  a  railroad  for  the  carriage  of 
freight  and  passengers  between  the  cities  of  Buffalo  and  New  York,  in 
that  State,  and  the  intermediate  places,  running  its  road,  en  route 
between  the  termini  named,  for  short  distances  in  the  States  of 
Pennsylvania  and  New  Jersey  by  the  permission  of  those  States 
respectively-. 

Each  of  the  plaintiffs  purchased  a  ticket  and  took  passage  on  the 
defendant's  road,  on  the  14th  of  April,  1868,  from  stations  in  this 
State  to  the  city  of  New  York,  and  while  in  transit  from  the  place  of 
departure  to  the  city  of  New  York,  and  upon  a  part  of  the  road  in  the 
State  of  Pennsylvania,  sustained  the  injuries  complained  of.  By  an 
act  of  the  legislature  of  Pennsylvania,  passed  April  4,  1868,  the 
recovery  in  actions  then  or  thereafter  instituted  against  common  car- 
riers or  railroad  corporations  for  personal  injuries  is  limited  to  $3,000. 
Upon  the  trials,  it  was  claimed  in  behalf  of  the  defendant  that  the 
rights  of  recovery  of  the  plaintiffs  were  controlled  by  this  act.  The 
claim  was  overruled  by  the  judge,  and  each  of  tlie  plaintiffs  had  ver- 
dicts in  excess  of  the  limit  prescribed  by  the  Pennsylvania  statute, 
Dike  for  $35,000,  at  the  King's  Circuit,  and  Floyd  for  $15,000  at  the 
Tioga  Circuit,  and  judgments  upon  such  verdicts  were  affirmed  by  the 

1  Ace.  Hale  v.  N.  J.  S.  N.  Co.,  15  Conn.  539  ;  Pennsylvania  Co.  v.  Fairchild,  69  111. 
261  ;  Brockway  v.  American  Ex.  Co.,  171  Mass.  158,  50  N.  E.  620  ;  Davis  v.  C.  M.  & 
S.  P.  Ry.,  93  Wis.  470,  67  N.  W.  16  ;  8  Clunet,  72  (Cass.  Belg.  30  Jan.  '79) ;  26  Clunet, 
420  (Holland,  17  May  '97). 

The  English  cases  hold  the  charter-party  or  hill  of  lading  to  he  regulated  by  the 
law  of  the  flag.  Peninsular  &  O.  S.  N.  Co.  v.  Shand.  3  Moo.  P.  C.  n.  s.  272  ;  Lloyd  v. 
Guibert,  L.  R.  1  Q.B.  115;  The  August,  [1891]  P.  328.  If,  however,  the  fact?  clearly 
indicate  an  intention  to  be  bound  by  another  law,  the  instrument  is  governed  by  such 
biw.     The  Industrie,  [1894]  P.  58.  — Ed. 


584  DIKE   v.    ERIE    RAILWAY.  [CHAP.  X. 

Supreme  Court  at  the  General  Terms.     The  defendant  has  appealed  to 
this  court.^ 

Allen.  J.  The  only  question  to  be  considered  upon  this  appeal  is 
as  to  the  effect  of  the  Pennsylvania  statute,  Ihniting  the  amount  of  the 
recovery  in  actions  of  this  character.  It  is  conceded  that  the  statutes 
of  one  State  are  not  obligatory  upon  the  courts  of  other  States ;  that 
the\-  have  not  projjrio  vigore^  the  force  of  law  be3-ond  the  limits  of  the 
State  enacting  them.  But  it  is  sought  to  bring  these  actions  within  the 
operation  and  effect  of  the  foreign  statute  upon  the  ground  that 
the  contracts  were  made  with  reference  to  the  laws  of  that  State, 
and  the  causes  of  action  arose  there. 

Tlie  generally  received  rule  for  the  interpretation  of  contracts  is  that 
they  are  to  be  construed  and  interpreted  according  to  tlieTawsJ^[The 
State  in  which  they  are  made  unless  from  their  terms  it  is  perceived 

'  that  they  were  t'litiTcd  into  with  a  view  to  the  laws^_joffie.oni[£EState. 
The   lac  lo<:i  contrwius  determines  the  nature,  validity,  obligation,  and 

«J^gal  effect  of  the  contract,   and   gives  the  rule   of  eonstruction^ajid- 
interpretation,  unless  it  appears  to  have  been  made  with  reference  to 

""^the  laws  and  usages  of  some  other  State  or  government,  as  when  i_t  is 

'to  be  performed  in  another  place,  and  then  in  conformity  to  the  pre- 
"suined  intention  of  the  parties,  the  law  of  the  place  of  performance 
furnishes  the  rule  of  interpretation,  Prentiss  v.  Savage,  13  Mass. 
20;  Medburyy.  Hopkins,  3  Con.  472;  Everett  v.  Vendryes,  19  N.  Y. 
436;  Hoyt  v.  Thompson's  Exr.,  id.  207;  Curtis  v.  Leavitt,  15  N.  Y., 
227.  The  contracts  before  us  were  made  in  the  State  of  New  York, 
and  between  citizens  of  that  State.  The  plaintiffs  were  actual  inhab- 
itants, and  the  defendant  was  a  corporation  existing  by  the  laws  of 
that  State.  The  contracts  were  for  the  carriage  and  conveyance  of  the 
plaintiffs  over  the  road  of  the  defendant,  between  two  places  in  the 
same  State,  to  wit,  from  stations  on  the  line  of  the  road,  in  the  western 
part  of  the  State  to  the  city  of  New  York.  The  duty  and  obligation  of 
the  defendant,  in  the  performance  of  the  contracts,  commenced  and 
ended  within  the  State  of  New  York.  Although  the  route  and  line  of 
the  defendant's  road  between  the  places  at  which  the  plaintiffs  took 
their  passage  and  their  destination  passed  through  portions  of  the 
States  of  Pennsylvania  and  New  Jersey,  by  the  consent  of  those  States 
respectively,  the  parties  cannot  bo  presumed  to  have  contracted  in  view 
of  the  laws  of  those  States.  The  contracts  were  single  and  the  per- 
formance one  continuous  act.  The  defendant  did  not  undertake  for 
one  specific  act,  in  part  performance  in  one  State,  and  another  specific 
and  distinct  act  in  another  of  the  States  named,  as  to  which  the  parties 
could  be  presumed  to  have  had  in  view  tlie  laws  and  usages  of  distinct 
places.  Whatever  was  done  in  Pennsylvania  was  a  part  of  the  single 
act  of  transportation  from  Attica,  or  Wavorly,  in  the  State  of  New 
York,  to  the  city  of  New  York,  and  in  pcrformanco  of  an  oV)ligation 
assumed  and  undertaken  in  this  State,  and  whicli  was  indivisible.  The 
1  Arguments  of  counsel  are  omitted.  —  Ed. 


SECT.  IX.]  DIKE    V.    ERIE   RAILWAY.  585 

obligation  was  created  here,  and  by  force  of  the  laws  of  this  State,  and 
force  and  effect  must  be  given  to  it,  in  conforiuit\-  to  the  laws  of  New 
York  (Carnegie  r.  Morrison,  2  Mete.  381,  Per  Shaw,  Ch.  J.)  The 
performance  was  to  commence  in  New  York,  and  to  be  full}-  completed 
in  the  same  State,  but  liable  to  breach,  partial  or  entire,  in  the  States 
of  Pennsylvania  and  New  Jersey,  through  which  the  road  of  the  de- 
fendant passed,  but  whether  the  contract  was  broken,  and  if  broken, 
the  consequences  of  the  breach  should  be  determined  l)y  the  laws  of 
this  State.  It  cannot  be  assumed  that  the  parties  intended  to  subject  (' 
the  contract  to  the  laws  of  the  other  States,  or  that  their  rights  and /I 
liabilities  should  be  qualified  or  varied  by  any  diversities  that  might ^ 
exist  between  the  laws  of  those  States  and  the  lex  loci  contractus. 
The  case  of  the  Peninsular  and  Oriental  Steam  Navigation  Co.  v. 
Shand  (3  Moo.  P.  C.  n.  s.  272),  is  somewhat  analogous  in  principle  to 
the  case  at  bar.  A  passenger,  by  an  English  vessel  belonging  to  an 
English  companv,  from  Southampton  to  Mauritius  via  Alexandria  and 
Suez,  sustained  a  loss  of  his  baggage  between  Alexandria  and  Mau- 
ritius, and  it  was  held  that  the  contract  for  the  passage  was  to  be  inter- 
preted b>'  the  law  of  England,  the  place  where  the  contract  was  made. 
The  Supreme  Court  at  Mauritius  had  held  that  the  contract  was  gov- 
erned by  the  French  law  in  force  in  Mauritius,  and  refused  to  the 
defendants  the  benefit  of  an  exemption  from  liability  for  loss  of 
propert}',  to  which  thev  were  entitled  by  the  terms  of  the  contract  as 
interpreted  bj'  the  laws  of  England,  and  the  judgment  was  reversed, 
upon  appeal,  by  the  Privy  Council. 

Whether  the  actions  are  regarded  as  actions  of  assumpsit  upon  the 
contracts,  or  as  actions  upon  the  case  for  negligence,  the  rights  and 
liabilities  of  the  parties  must  be  judged  by  the  same  standard.  The 
form  of  the  action  concerns  the  remedy,  but  does  not  affect  the  legal 
obligations  of  the  parties.  In  either  form  of  action  the  Uabilit}'  of  the 
defendant,  and  the  rights  of  the  plaintiffs,  are  based  upon  the  contracts. 
The  defendant  owed  no  duty  to  the  plaintiffs,  except  in  virtue  of  the 
contracts,  and  the  obligations  for  the  violation  and  breach  of  which  an 
action  may  be  brought  are  onl}'  co-extensive  with  the  contracts  made. 
It  follows,  that  the  law  of  Pennsylvania  cannot  enlarge  or  restrict  the 
liability  of  parties  to  a  contract,  which  for  its  validity,  effect,  and  con- 
struction, is  subject  to  the  laws  of  New  York.  -Xlie  damages  to  which 
a  paxtaiis  entitled  upon  the  breach  of  a  contract,  or  violation  of  a  duty 
growing  out  of  a  (iQntract,  and  the  rule  and  measure  of  damages  per- 
tains to  the  right  and  not^jto_tbg^emed\\_  Tt.^^a— mnti.pr  of  substance. 
and  the  principal  thing  sought,  and  not  a  mere  infidpnt  tp  the  '-crnQHy 
forJLhe  principal  thing.  It  is  conceded  that  the  statutes  of  Pennsjd- 
vania  have  no  intrinsic  extraterritorial  force,  and  that  the}'  bind  only 
within  the  jurisdictional  limits  of  the  State.  Upon  principles  of  comity, 
effect  is  sometimes  given  by  the  courts  of  a  State  to  foreign  laws.  In 
matters  of  contract,  such  effect  is  accorded  to  statutes  of  other  States, 
only  to  carr}'  out  the  intent  of  and  do  justice  between  the  parties,  never 


/ 


586  TALBOTT   V.   MERCHANT'S    DESPATCH    TRANSP,    CO.       [CHAP.  X. 

to  qualify  or  var}-  the  effect  of  a  contract  between  parties  not  citizens 
of  such  foreign  State,  or  subject  to  its  laws,  and  not  made  in  view  of 
the  laws  of  such  State.  Effect  will  not  be  given  b}'  the  courts  of  a 
State  to  foreign  laws  in  derogation  of  the  contracts,  or  prejudicial  to 
the  rights  of  citizens.  Liverpool,  Brazil,  &c.  Steam  Navigation  Corn- 
pan}'  /'.  Benham,  2  Law  Rep.  P.  C.  Cases,  193  ,  Hale  v.  N.  J.  St. 
Nav.  Co.,  15  Conn.  539  ;  Arnott  v.  Redfern,  2  Carr.  &  Payne,  88  ; 
Gale  V.  Eastman,  7  Met.  14. 

The  actions  are  not  given  b}'  the  laws  of  Pennsylvania.     They  grow 

out  of  the  contracts  and  the  duties  resulting  from  the  contracts,  and  are 

given  b}'  the  common  law,  and,  therefore, J;he_laws  of  another  State  in 

an  action  brought   hpvp  fapnot  prescribe  the  measure  of  damages,  or 

imil  lEeTIabilitv  of  theparties.  Judgment  affirmed?- 


TALBOTT  V.  MERCHANT'S   DESPATCH   TRANS- 
PORTATION  CO. 

Supreme  Court  of  Iowa.    1875. 

[Reported  41  loiva,  247.] 

This  action  is  brought  to  recover  the  value  of  four  cases  of  boots, 
delivered  by  plaintiff's  agentS''to^defe n d ah f,' "a  'cOTrnngnjcamer,'aT'Hart- 
^rcl^Conn.,  to  be  transported  by  said"  dFferrdant  to"D^Moines,  Iowa. 


The  plaintiff  alleges  ffie  acceptance  of  the' goocIsTan  agreement  to  carry, 
and  the  failure  to  deliver,  and  claims  the  value  thereof — $220.38. 
The  defendant,  b}'  answer,  admits  that  it  is  a  common  carrier,  the 
receipt  of  the  goods  and  the  failure  to  deliver,  and  avers  want  of 
knowledge  as  to  value.  The  defendant  also  avers  that  by  the  express 
terms  of  said  agreement,  the  goods  were  to  be  transported  and  deliv- 
ered in  Des  Moines,  in  like  order  as  they  were  received,  damages  from 
fire  excepted  ;  and  that  without  an}'  fault  or  negligence  of  said  defend- 
ant, said  cases  of  boots  were,  at  Chicago,  Illinois,  destroyed  bv  fire 
(in  the  great  conflagration  of  October,  1871),  while  in  transit  from 
Hartford  to  Des  Moines.  The  bill  of  lading  containing  the  agreement 
was  annexed  as  an  exhibit  to  the  answer,  and  it  shows  the  receipt  of 
the  goods  in  good  order  and  the  marks  thereon,  and  states  that  said 
four  cases  of  boots  are  "  to  be  forwarded  in  like  good  order  (dangers 
of  navigation,  collision,  and  fire,  and  loss  occasioned  b}'  mob,  riot, 
insurrection,  or  rebellion,  and  all  dangers  incident  to  railroad  trans- 

1  In  a  few  cases  it  is  held  that  a  limitation  of  liability  is  governed  by  the  law  of 
the  place  of  contractiiitj  wliere  the  carriage  is  to  be  throngh  tliat  and  other  States, 
because  the  contract  is  entire  and  the  laws  of  several  places  of  performance  cannot  be 
applied.  111.  Cent.  R.  R.  v.  Bcebe,  174  111.  13,  50  N.  E.  1019;  R.  R.  v.  Exposit.  C. 
Mills,  81  Ga.  522,7  S.  E.  916.  — En. 


SECT.  IX.]       TALBOTT   V.   MERCHANT'S    DESPATCH   TR.\NSP.    CO.  587 

portation  excepted),   to  depot  only,  he,  or  the}-  paying  freight  and 
charges  for  the  same  as  below." 

The  plaintiff  demurred  to  the  answer  because  :  1,  It  does  not  allege 
that  plaintiff  has  assented  to  the  alleged  agreement.  2.  It  does  not 
show  that  the  loss  of  said  goods  occurred  through  any  exception  men- 
tioned.    3.    The  agreement  stipulated  for  absolute  exemption  from  lia- 

Jbi Wjy^juwv'n  thougJj^the  loss  occurs  through  the  negligence  of  defendant, 
and  is  tlicrefore  against  publlapolioy,  att4-void. 

'^  This  demurrer  was  sustained,  and,  the  defendants  electing  to  stand 
upon  the  answer,  judgment  was  rendered  for  plaintiff  for  the  amount 
of  the  claim.     The  defendant  appeals.^ 

Cole,  J.     It  is  conceded  by  the  respective  counsel  that  the  contract^ 
as  shown  by  thel^ill  of  J[a^iji,.xaiitaiuijigjexce[)tioiis  from  liability  for 

"loss^W  fire,  was^alid  and-biudiag.ln.  Connecticut.^  Latvrence  iT'X  1 ." 
R  B.  KT'R.t^o.,  36  Conn.  63;  and  in  IllinoiT,  I.  C.  R.  R.  Co.  v.  Mor- 
rison, 19  111.  24,  And  that,  by  Chap.  13,  Laws  of  11th  G.  A.  of  Iowa, 
it  was  enacted  "that  in  the  transportation  of  persons  or  property  by 
any  railroad  or  other  company,  or  by  any  person  or  firm  engaged 
in  the  business  of  transportation  of  persons  or  property,  no  con- 
tract, receipt,  rule,  or  regulation  shall  exempt  such  railroad  or  other 
company,  person,  or  firm  from  the  full  liabilities  of  a  common  car- 
rier, which  in  the  absence  of  any  contract,  receipt,  rule,  or  regu- 
lation would  exist  with  respect  to  such  persons  or  property"  (see 
Laws  of  1866,  p.  121),  and  that  thereby  the  exceptions  in  the  bill  of 
lading  in  this  case  would  be  inoperative  and  void  in  Iowa.  .The  main 
question,  therefore,  presented  in  this  case  is,  whether  the  contract^f 
affreightment  shall  be  governed  by  the  laws  of  Connecticut  or  of  lowa^ 
Respecting  the  general  rule  that  a  contract  valid  where  made  is  valid_ 
'everywhere,  and  tB3t-where  a  coirtract  specifies  a  place  of  performance^ 
ItTrtTbelnterpreted   by  the  law  of  that  place,  the  counsel  are  also 

-agFeed."  "The  question  of  difficulty  in  this  case  is  in  determining  the 
place  "of  the  performance  of  the  contract. 

Tt  was  held  by  this  court  in  McDaniels  v.  The  C.  &  N.  W.  Ry.  Co., 
24  Iowa,  412,  that  a  contract  of  affreightment  made  in  Iowa  for  the  trans- 
portation of  cattle  by  railroad  from  Clinton,  Iowa,  to  Chicago,  Illinois, 
and  for  their  delivery  at  the  latter  place,  was  to  be  determined  by  the 
laws  of  Iowa,  for  that  the  contract  was  made  in  Iowa,  and  was  therein 
partly  to  be  performed.  Applying  the  rule  of  that  case  to  this,  it 
seems  necessarily  to  follow,  that  since  this  contract  was  made  in  Con- 
necticut and  was  there  to  be  partly  performed,  its  validity  and  effect 
should  be  determined  by  the  law  of  that  State.  But,  without  determin- 
ing that  such  a  rule  should  be  applied  to  its  full  extent  to  every  con- 
tract or  even  to  this.jve  here  ground, j)iii:__decision  pUhia.j;anfiP  upon 
the  special  facts  of  the  case  which  showJhat_.tlie  contractjis  made_was 
valid  in  Connecticut,  where  the  contract  was  made,  and  in  Illinois^ 
■"Iviiere  the  loss  occurred?     Whether  a  different  rule  would  apply  if  the 

1  Arguments  of  counsel  are  omitted.  —  Ed 


jcr^ 


588  CURTIS    V.    DELAWARE,    ETC.    RAILROAD.  [CHAP.  X. 

detendants  had  entered  upon  the  performance  of  their  contract  in  Iowa 
and  the  loss  had  there  occurred,  we  need  not  determine. 
A '-  Our  conclusion  in  this  case  may  be  i-estedjapon  the  general  principle, 

\jfy  ,    tlat  wlien  there  are  several  possibleTocal  Taws  "applicable,  to  the  case^r- 

^     Cj  |>^^that  law  IS  to  be"appliedlvhrcTi  is  most  favorable  to  the^  contract.;  or,  to_ 

>^uJK       '    i/      State  the  same  rule  in' other  phraseology,  when  there  is  a  conflict  of_ 

Ci^       ^^pplicafoiy  laws' the  parties  are  presumed  to  have  naiade_4)art  of  their 
^/f'  ^agreement  that  law  which  is  most  favorable  to  its  validity  and  per- 

'^formance.  See  Wharton  on  Conflict  of  Laws,  §  429,  and  authorities 
there  cited;  Arnold  v.  Potter,  22  Iowa,  194.  The  answer,  by  its  ad- 
mission of  the  execution  of  the  agreement,  by  fair  implication,  if  not 
necessarily,  admits  that  it  was  accepted  or  assented  to  by  the  plaintiff. 
Such  acceptance,  without  more,  would  bind  him.  See  Mulligan  v.  111. 
Cent.  R.  R.  Co.,  36  Iowa,  181. 

A  fair  construction  of  the  exception  would  exempt  the  defendant 
from  liability  from  loss,  without  its  negligence,  by  fire,  although  such 
fire  did  not  result  from  collision.  In  other  words,  the  exception  relates 
to  the  loss  either  by  collision  or  fire,  and  not  alone  from  loss  resulting 
from  ''  collisions  and  fire."  Our  conclusion,  therefore,  is  that  the 
answer  presents  a  sufficient  defence  and  that  the  court  erred  in  sustain- 
ing a  demurrer  thereto.  Meversed,} 


CURTIS   V.   DELAWARE,  LACKAWANNA,  AND  WESTERN 

RAILROAD. 

Court  of  Appeals,  New  York.     1878. 

[Reported  74  New  York,  116.] 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
in  the  second  judicial  department,  affirming  a  judgment  in  favor  of 
plaintiff,  entered  upon  a  decision  of  the  court  on  trial,  without  a  jury. 

This  .nct,ionjviis__brought  to  recover  for  the  J(2as_of  jl trunk  and  its 
consents.  The  court  found,  in  substance,  that  plaintiff,  on  the  9th  of 
—October,  1875,  took  passage  on  defendant's  road  from  ScraolojU-Penn- 
sylvanijL.t(LNew  YprkCit\-j.leaving  his  baggage  to  be  brought  by  his 
—wife  ;  that,  on  the  16th  of  October,  1875,  plaintiffs  wife  and  infant  son 
took  passage  at  Scrankin  for  New  York,  with  his  and  their  baggage, 
consisting  of  personal  clothing,  all  of  which  was  his  property  ;  that  the 
baggage  was  l)rouglit_safely  by  defendant  to  New  York,  and  was  there 
lost  through  its  negligence. 

'That  by  a  general  act  of  the  Legislature  of  said  Commonwealth  of 
Pennsylvania,  passed  on  tlie  llth  day  of  April,  1867,  and  at  all  times 
since  and  still  in  force,  it  was  enacted  and  declared  as  follows  :  — 
"Section  1.    Each  passenger  upon  a  railroad  shall  have  the  right  to 

1  See  Hazel  v.  C  M.  &  S.  P.  Ry.,  82  la.  477,  48  N.  W.  926.  —Ed. 


SECT.  IX.]  CURTIS    V.    DELAWARE,    ETC.    RAILROAD. 


589 


have  carried  in  the  car  or  place  provided  for  that  purpose,  in  the  train 
in  which  he  or  she  ma}'  be  a  passenger,  his  or  her  personal  clothing,  not 
exceeding,  inclusive  of  the  trunk  or  box  in  which  it  may  be  contained, 
one  hundred  pounds  in  weight,  and  $300  in  value." 

"  Section  2.  No  railroad  company'  shall,  under  an}-  circumstances, 
be  liable  for_loss  or  damage  of  any  baggage  or  property  belonging  to 
any  such  passenger,  beyond  the  said  sum  of  ^300,  unless  it  shall  be 
proven  that  the  excess  in  value  thereof  over  that  sum  was  duly  declared 
to  the  agents  of  the  company  at  the  time  of  its  delivery  for  transporta- 
tion, and  the  sum  charged  by  the  railroad  company  for  such  transpor- 
tation over  and  above  passage  fare  was  paid : 

"  Provided,  however,  that  the  said  declaration  shall  not  reUeve  the 
claimant  from  proving  the  actual  value  of  the  articles  alleged  to  have 
been  lost  or  damaged ;  but  in  no  event  shall  there  be  any  recovery 
beyond  the  value  thus  declared." 

Further  facts  appear  in  the  opinion.^ 

Miller,  J.  The  right  of  a  passenger  to  recover  of  a  railroad  corpo- 
ration damages  arising  by  reason  of  a  loss  of  baggage,  while  travelling 
upon  the  railroad,  is  fully  estabUshed,  and  according  to  the  laws  of  this 
State_there  can  be  no  question  as  to  the  liability  xif  such  company  for 
the  loss  actually  siistained,  when  it  fails  to  fulfil  the  contract  witli  the 
traveller,  or  is  chargeable  with  negligence,  by  which  the  damages  are 
caused.  The  baggage,  for  which  a  recovery  was  had,  was  delivered  to 
the  defendant  at  Scran  ton,  in  the  State  of  Pennsylvania,  to  be  trans- 
ported to  and  delivered  in  the  city  of  New  York.  The  first  question, 
which  arises  upon  this  appeal  is  whether  the  statute  of  the  State  jaf 
Pennsylvania,  passed  in  1867,  which  limits  and  defines  the  liability 
of  railroad  corporations  upon  contracts  entered  into  by  them  for_ 
the  transniission  of  baggage,  forms  a  part  of  the  contract  between— 
the  plaintiff  and  the  defendant,  and  should  be  considered  as  determin- 
ing the  right  to  recover  and  the  amount  of  the  recovery.  I  think  that  _ 
the  statute  cited  has  no  application,  and  that  the  rights  of  the  parties 
must  be  determined  in  accordance  with  the  laws  of  the  State  of  Nejr 
York,  jffhich  are  applicable  to  such  contracts,  as  is  manifest  by  refeij 
ring  to  the  principles  which  govern  contracts  of  this  description.  One 
of  the  rules  applicable  to  the  subject  is  that  the  lex  loci  contractus  is  to 
govern,  unless  it  appears  upon  the  face  of  the  contract  that  it  was  to 
be  performed  in  some  other  place,  or  made  with  reference  to  the  laws 
of  some  other  place,  and  then  the  rule  of  interpretation  is  governed  by 
the  law  of  the  place.  Dyke  v.  Erie  Railway  Co.,  45  N.  Y.  113; 
Sherrill  v.  Hopkins,  1  Cow.  103.  The  place  of  delivery  was  a  material 
and  important  part  of  the  contract,  and  until  such  delivery,  the  same 
was  not  completed  and  fulfilled.  Upon  a  failure  to  deliver  the  baggage 
to  the  plaintiflT,  in  the  city  of  New  York,  there  was  a  breach  of  Ihe 
contract ;  and  as  the  final  place  of  performance  was  in  that  city,  iL 
would  seem  to  follow  that,  within  the  rule  laid  down,  the  contract  was 

1  Arguments  of  counsel  and  part  of  the  opinion  are  omitted.  —  Ed. 


590  BURNETT   V.    PENNSYLVANIA   RAILROAD.  [CHAP.  X. 

to  be  goveraecl,  at. least  so  far  as  a  delivery  is  concealed^  by_tlje_^laws 
of  New  York,.  This  certainly  was  to  be  done  in  a  different  place  from 
where  the  contract  was  made,  and  it  is  a  reasonable  inference  that  it 
was  in  the  contemplation  of  the  parties  at  the  time,  and  that  it  was 
entered  into  with  reference  to  the  laws  of  the  place  where  it  was  to  be 
delivered.  So,  also,  when  it  appears  that  the  place  of  performance  was 
different  from  the  place  of  making  the  contract,  it  is  to  be  construed 
according  to  the  laws  of  the  place  where  it  is  to  be  performed.  Sherrill 
r.  Hopkins,  supra,  p.  108,  and  authorities  there  cited  ;  Thompson  ?-• 
Ketcham,  8  Johns.  189  ;  4  Kent's  Com.  459.  The  place  of  final  per- 
formance of  the  contract  being  in  the  cit}-  of  New  York,  although  the 
transportation  was  mostly  through  other  States,  no  reason  exists  why 
a  failure  to  deliver  the  baggage  should  not  be  controlled  b}'  the  laws 
which  prevail  at  the  place  of  delivery-  It  is  said  that  the  contract  is 
entire  and  indivisible,  and  we  are  referred  to  some  cases  outside  of  this 
State,  which,  it  is  claimed,  sustain  the  doctrine  that  the  localitj-  where 
the  contract  was  made,  in  cases  of  this  character,  must  control.  None 
of  the  cases  cited  are  entirely  similar  to  the  one  at  bar  and  do  not 
involve  the  precise  point  now  considered.  But  even  were  it  otherwise, 
they  are  not,  I  think,  controlling,  as  no  reason  exists  why  a  contract  to 
deliver  baggage  should  not  be  governed  by  the  laws  of  the  place  where 
the  baggage  is  to  be  delivered. 


BURNETT  V.   PENNSYLVANIA   RAILROAD. 

,  Supreme  Court  of  Pennsylvania.     1896. 

[Reported  176  Pennsi/lvcmia,  45.] 

Fell,  J.  The  refusal  of  the  court  to  charge  that  "  as  the  contraet 
for  transportation  was  made  in  New  Jersey  it  will  be  enforced  in  this 
State  as  in  that,  and  as  the  defendant  was  released  from  responsibility 
by  the  free  pass  the  verdict  must  be  for  the  defendant, "j-aises  the  only 
question  to  be  cojisiderecL  The  plaintiff  was  employed  by  the  defend- 
ant as  a  flagman  at  Treiiton,  N.  J.  He  applied  for  and  was  granted 
free  transportation  for  himself,  his  wife  and  daughter,  to  Elmira,  N.  Y- 
He  received  two  passes,  —  one  from  Trenton  to  PhUadelplua,  the  terms 
of  which  do  not  appear  in  evidence  ;  the  other,  an  employee's  trip  pass 
from  Philadelphia  to  Elmira^^by  the  terms  of  which  he  assumed  all 
risks  oT  accident.  He  was  injured  at  Harrisburg,  Pa.,  through  the 
admitted  negligence  of  the  defendant's  employees. 

It  was  proved  at  the  trial  that  under  the  laws  of  New  Jersey  the 
contract  by  which  the  plaintiff  in  consideration  of  free  transportation 
assumed  the  risk  of  accident  was  valid,  and  that  in  that  State  he  could 
not  recover ;  and  it  is  conceded  that  in  Pennsylvania  the  decisions  are 


SECT.  IX.]  BUKNETr   V.   PENNSYLVANIA   KAILROAD.  591 

Otherwise,  and  that  such  a  contract,  will  not  relieve  <i  common  carrier 
from  responsibilit}-  for  negligence.  Gokley  c.  Penna.  R.  R.  Co.,  30  Pa. 
242  ;  Penna.  R.  R.  Co.  v.  Henderson,  51  Pa.  315  ;  Penna.  R.  R.  Co. 
V.  Butler,  57  Pa.  335  ;  Buffalo,  Pittsburg  &  Western  R.  R.  Co.  o. 
O'Hara,  12  W.  N.  C.  473.  The  question  then  is:  By  the  laws  of 
which  State  is  the  responsibility  of  the  defendant  to  be  determined? 

The  djjfendant  isjLcori3oratii]ji_aLlJlfi_-Staifi.jQ£JPeimsyl£aaia^^ 
injury  occurred  in  the  operation  ofjtsj'oad  in  this  State.  The  passes, 
although  issued  and  deUvered  in  New  Jersey,  were  for  transportation 
from  the  stationin  Trenton  directly  across  the  Delaware  river  into  this 
State.  .  1  be  service  was  to  be  rendered  here ;  this  was  the  place  of 
performance. 

'  (^nerally  as  to  its  formalities  and  it",?^  inf,prprftto.t.ion.  obligatiou^  ati^ 
effect,  a  contract  is  g^v^grned  hj^  th^  'ff'""  ^^  ^^^'^  pio^o  whoro  it.  js  madey 
andit^tris^valid  there,  it  is  valid  everywhere  ;  b ut  when  it  is  majli;.  iu^ 
one  State  or  country  to  be  performed  in  another  State  or  jcpuatry JLts 
validity  and  effect  are  to  be  determined  by  the  laws  of  the  placej^ 
performance.  It  is  to  be  presumed  that  parties  enter  into  a  contract 
with  reference  to  the  laws  of  the  place  of  performance,  and  unless  it 
appears  that  the  intention  was  otherwise  those  laws  determine  the 
mode  of  fulfilment  and  obligation  and  the  measure  of  liability  for 
its  breach.  Daniel  on  Negotiable  Instruments,  658  ;  Byles  on  Bills, 
586  ;  2  Kent's  Commentaries,  620  ;  Wharton  on  the  Conflict  of  Laws, 
§  401  ;  Story  on  the  Conflict  of  Laws,  §  280 ;  Scudder  v.  Union 
National  Bank,  91  U.  S.  406  ;  Brown  v.  C.  &  A.  R.  R.  Co.,  83  Pa.  316  ; 
Waverly  Bank  v.  Hall,  150  Pa.  466.  The  decision  in  Brown  v.  C.  & 
A.  R.  R.  Co.  (supra)  seems  to  be  conclusive  of  this  ease.  In  that  case 
a  ticket  was  issued  in  Philadelphia  b}-  a  New  Jerse}'  corporation  oper- 
ating a  railroad  in  that  State,  and  the  plaintiff's  trunk  was  deliveretl  to 
the  defendant  in  Philadelphia,  and  it  did  not  appear  where  it  had  been 
lost.  The  liability  being  admitted,  the  question  was  whether  the  laws 
of  Pennsylvania  limiting  the  amount  of  liability  applied.  It  was  held 
that  as  the  service  was  to  be  rendered  by  a  New  Jersey  corporation  in 
New  JerseN-  the  laws  of  the  place  of  performance  controlled.  It  was 
said  in  the  opinion  by  Sharswood,  J.:  "The  negligence  of  which 
the  defendants  are  presumed  to  have  been  guilt}'  was  in  the  course  of 
the  exercise  of  their  franchises  as  a  New  Jersey'  corporation,  and  the 
extent  of  their  liability  is  therefore  to  be  determined  by  the  laws 
of  that  State."  The  judgment  is  affirmed.^ 

i  Ace.  Barter  v.  Wheeler,  49  N.  H.  9.  —  Ed. 


592  •  BKACKETT   V.   NORTON,  [CHAP.  2. 


LORING  V.   NEFrUNE  INSURANCE   CO. 
Supreme  Judicial  Court  of  Massachusetts.     1838. 
[Reported  20  Pickering,  411.] 

Shaw,  C.  J.^  The  general  average  iu  the  present  case  was  made  up 
and  adjusted  at  Hamburg,  the  port  of  destination,  at  which  the  several 
interests  liable  to  contribute  were  necessarily  to  be  separated  from  each 
other.  Hamburg  therefore  was  the  proper  place  for  the  adjustment  and 
payment  of  this  general  average.  Such  general  average  must  neces- 
sarily be  adjusted  according  to  the  laws  and  usages  of  the  place  where 
the  adjustment  was  made.^ 


SECTION   IX. 

(C)   Obligatioxs  Qcasi  ex  Contractu. 

BRACKETT   v.   NORTON. 
Supreme  Court  of  Errors  of  Connecticut.     1823. 

[Reported  ^  Connecticut,  .51 7. J 

HosMER,  C.  J.^  The  general  question  in  the  case  is  whether  the 
law  implies  a  contract  that  the  defendant  shall  pay  the  plaintifl'  for 
the  services  performed  by  him.  .  .  .  The  services  of  the  defendant 
having  been  rendered  in  the  State  of  New  York,  under  a  contract 
made  in  that  State,  their  laws  are  the  standard  by  which  the  case 
must  be  determined.*  .   .  . 

1  Part  of  the  opinion  onlv  is  given.  — Ed. 

2  Ace.  Siraonds  v.  White,  2  B.  &  C.  80,5  ;  1  Cluuet,  1.33  (R.  0.  II.  G.  28  Dec.  72) ; 
5  Clunet,  599  (Rouen,  20  Mar.  '78) ;  8  Clunet,  311  (Holland,  11  Feb.  '78)  ;  20  Cluuet, 
949  (Antwerp,  14  Jan.  '92). 

If  the  voyage  is  completely  brokeu  up  at  an  intermediate  port  of  refuge,  it  has  been 
hold  that  the  adjustment  of  general  avcsrage  shouhl  be  according  to  tiie  law  there 
prevailing.  Mavro  v.  In.s.  Co.,  L.  R.  10  C.  P.  414.  In  Norway,  however,  it  ha.s  been 
hold  that  it  should  be  adjusted  at  the  port  of  refuge  according  to  the  law  of  the  port 
of  intended  destination.  15  Clunet,  151  (25  Mar.  '86).  If  after  disaster  the  cargo  is 
forwarded  to  destination,  general  average  should  tlien  at  any  rate  be  computed 
according  to  the  law  of  the  port  of  destination.  Nat.  Board  v.  Melcliers,  45  Fed. 
643.  —  Ed. 

8  Part  of  tlie  opinion  onlv  is  given.  —  Ed. 

♦  Ace.  Crumlish  v.  Central  Imp.  Co.,  38  W.  Va.  390,  18  S.  E.  456.  —Ed. 


PART   IV. 
THE  RECOGNITION   AND   ENFORCEMENT  OF   RIGHTS. 


CHAPTER   XI. 
PERSONAL   RELATIONS. 


SECTION   I. 

CAPACITY. 


SOMERSET   V.   STEWART. 
King's  Bench.      1772. 

[Reported  Loft,  1.] 
On  return  to  an  habeas  corpus,  requiring  Captain  Knowles  to  show 
cause  for  the  seizure  and  detainure  of  the  complainant  Somerset,  a 
negro,  the  case  appeared  to  be  this  :  that  the  negro  had  been  a  slave 
to  Mr.  Stewart,  in  Virginia ;  had  been  purchased  from  the  African 
coast,  in  the  course  of  the  slave  trade,  as  tolerated  in  the  plantation  ; 
that  he  had  been  brought  over  to  England  by  his  master,  who,  intend- 
ing to  return,  b\-  force  sent  h'  a  on  board  of  Captain  Knowles's  vessel, 
lying  in  the  river  ;  and  was  ..lere,  by  the  order  of  his  master,  in  the 
custody  of  Captain  Knowles,  detained  against  his  consent,  until 
returned  in  obedience  to  the  writ.  And  under  this  order  and  the  facts 
stated,  Captain  Knowles  relied  in  his  justification.^ 

1  The  arguments  of  Mr.  Hargrave  and  Mr.  Alleyne  for  the  negro,  and  of  Mr.  "Wallace 
and  Sarjeant  Davy  for  the  defendant,  are  omitted  ;  they  will  be  found  at  length  in  21 
Howell's  State  Trials,  1.  In  the  course  of  the  argument,  "  the  court  approved  Mr. 
Alleyne's  opinion  of  the  distinction  how  far  municipal  laws  were  to  be  regarded ; 
instanced  the  right  of  marriage,  which,  properly  solemnized,  was  in  all  places  the  same, 
but  the  regulations  of  power  over  children  from  it,  and  other  circumstances,  very 
various."  At  the  end  of  the  arguments.  Lord  Mansfield  said:  "The  now  question  is, 
whether  any  dominion,  authority,  or  coercion  can  be  exercised  in  this  country  on  a 
slave  according  to  the  American  laws  ?  The  difficulty  of  adopting  the  relation  without 
adopting  it  in  all  its  consequences  is  indeed  extreme  ;  and  yet  many  of  those  conse- 
quences are  absolutely  contrary  to  the  municipal  law  of  England.  We  have  no  au- 
thority to  regulate  the  conditions  in  which  law  shall  operate."  —  Ed. 

38 


594  COMMONWEALTH    V.    GKEEN.  [CHAP.  XI 

Lord  Mansfield,  C.  J.^  We  pay  all  due  attention  to  the  opinion  of 
Sir  Philip  Yorke  and  Lord  Chief  Justice  Talbot,  whereby  they  pledged 
themselves  to  the  British  planters  for  all  the  legal  consequences  of 
slaves  coming  over  to  this  kingdom  or  being  baptized :  recognized  by 
Lord  Hardwick,  sitting  as  Chancellor,  on  the  1 9th  of  October,  1749,  that 
trover  would  lie  ;  that  a  notion  had  prevailed,  if  a  negro  came  over  or 
became  a  Christian,  he  was  emancipated,  but  no  ground  in  law  ;  that 
he  and  Lord  Talbot,  when  attorney'  and  solicitor-general,  were  of  opin- 
ion that  no  such  claim  for  freedom  was  valid  ;  that  tliough  the  statute 
of  tenures  had  abolished  villains  regardant  to  a  manor,  yet  he  did  not 
conceive  but  that  a  man  might  still  become  a  villain  in  gross,  by  con- 
fessing himself  such  in  open  court.  We  are  so  well  agreed  that  we 
think  there  is  no  occasion  of  having  it  argued  (as  I  intimated  an  inten- 
tion at  first)  before  all  the  judges,  as  is  usual,  for  obvious  reasons,  on 
a  return  to  a  habeas  corpus.  The  onl}'  question  before  us  is,  whether 
the  cause  on  the  return  is  sufficient ;  if  it  is,  the  negro  must  be  re- 
manded ;  if  it  is  not,  he  must  be  discharged.  Accordingly,  the  return 
states  that  the  slave  departed  and  refused  to  serve  ;  whereupon  he  was 
kept  to  be  sold  abroad.  So  high  an  act  of  dominion  must  be  recog- 
nized by  the  law  of  the  country-  where  it  is  used.  The  power  of  a  master 
over  his  slave  has  been  extremely  different  in  different  countries.  The 
state  of  slaver}'  is  of  such  a  nature  that  it  is  incapable  of  being  intro- 
duced on  any  reasons,  moral  or  political,  but  only  positive  law,  which 
preserves  its  force  long  after  the  reasons,  occasion,  and  time  itself  from 
whence  it  was  created  is  erased  from  memory.  It 's  so  odious  that 
nothing  can  be  suffered  to  support  it  but  positive  law.  Whatever  in- 
conveniences, therefore,  ma}-  follow  from  a  decision,  I  cannot  say  this 
case  is  allowed  or  approved  by  the  law  of  England  ;  and  therefore  the 
black  must  be  discharged^ 


COMMONWEALTH  v.   GREEN. 
Supreme  Judici.\l  Court  of  Massachusetts.     1822. 

[Reported  17  Massachusetts,  515.] 

Parker,  C.  J.^  The  prisoner,  having  been  convicted,  by  the  verdict 
of  a  jur}-,  of  the  crime  of  murder,  at  the  last  term  of  the  court,  moved 
for  a  new  trial ;  because,  as  alleged  in  his  motion,  one  Sylvester 
Stoddard,  wlio  had  been  sworn  as  a  witness  on  the  part  of  government, 
and  who  had  testified  to  tlie  jury,  had  been  convicted  of  the  crime  of 

^  Ivonl  Mansfield  fir.st  cited  the  return  to  tlie  writ.  —  Ed. 
2  Part  of  the  ouiniou  is  oiuitted.  —  Ed. 


SECT.  I.J  COMMONWEALTH   V.    GREEN.  595 

larcen\',  in  a  court  having  jurisdiction  of  the  offence,  within  the  State 
of  New  York  ;  whereby,  as  is  alleged,  he  was  rendered  infamous,  and 
for  that  reason  his  testimony  could  not  be  received  in  a  court  of  justice 
in  this  Commonwealth.   .   .  . 

If  New  York  is  to  be  considered  on  the  footing  of  a  foreign  State, 
the  difficulty  of  giving  such  effect  to  a  conviction  seems  insuperable. 
The  objection  to  the  witness  on  account  of  infamy  must  be  supported 
by  a  record  of  the  judgment.  What  is  a  record  of  a  foreign  State,  and 
how  it  shall  be  authenticated,  are  questions  of  delicacy  and  difficulty, 
which  it  would  be  almost  impossible  to  settle  in  the  course  of  a  trial, 
which  must  always  proceed  with  as  little  interruption  and  delay  as  pos- 
sible. Whether  the  facts,  which  would  be  here  deemed  an  infamous 
crime,  are  the  same  which  constitute  the  like  offence  in  the  countr}' 
from  which  the  record  comes,  the  court  would  have  no  means  of  know- 
ing with  certaint}'.  The  crime  of  treason  is  known  to  be  different  in 
different  countries  ;  what  is  felony,  also,  in  one  country  may  not  be 
felony  in  another  ;  and  it  is  competent  to  the  legislature  of  every  nation 
to  attach  disabilities  to  the  commission  of  offences  which,  b}'  the  laws 
of  otlier  nations,  may  be  wholly  without  such  consequences. 

Thus  one  State  may  enact  that  the  detention  of  another's  property 
after  demand  b}'  the  owner,  shall  be  deemed  and  taken  to  be  larcen}-, 
and  punished  as  such  ;  and  that  a  general  description  of  the  offence,  in 
the  indictment,  should  be  sufficient ;  so  that  a  foreign  court  could  never 
know,  by  inspection  of  a  copy  of  a  record,  what  were  the  ingredients  of 
the  crime  which  had  been  punished. 

So,  also,  the  non-payment  of  a  debt  may  be  branded  with  infamy  by 
the  laws  of  any  country,  and  designated  b}'  some  term  usuallj-  denoting 
the  crimen  falsi  ;  and  this  class  of  crimes  ma}'  be  enlarged  so  as  to  com- 
prehend transactions  which  in  other  countries  are  considered  venial, 
or  at  least  not  criminal. 

If  the  common  law  were  unchangeable,  the  courts  of  countries  which 
adopt  it  as  })art  of  their  code  might  know  with  certainty  the  nature  and 
character  of  crimes  ;  but  while  ever}'  country  has  its  legislature,  which 
has  a  right  to  alter  or  repeal  the  common  law,  such  certainty  cannot  be 
attained.  Treason,  by  the  common  law,  renders  the  convict  infamous  ; 
but  many  acts  are  made  treason  by  positive  enactments  in  one  country, 
which  would  not  be  so  in  another.  The  infam}',  therefore,  consequent 
upon  treason,  ought  not  to  pass  beyond  the  country  in  which  the  crime 
is  committed. 

Another  objection  to  receiving  such  evidence  for  such  a  purpose  is, 
that  a  person,  who  ma}'  have  left  his  native  country  convicted  of  crime, 
however  long  he  ma}'  have  lived  in  his  adopted  country,  and  wliatever 
reputation  he  may  have  acquired  by  a  course  of  upright  and  honorable 
conduct,  has  no  means  of  being  restored  to  credit.  For  the  pardon- 
ing power  of  the  country  where  he  resides  cannot  reach  an  offence 
committed  without  its  jurisdiction.  And  thus  it  may  happen  that  a 
naturalized  citizen,  who,  by  his  virtue  and  talents,  and  a  long  course  of 


596  COMMONWEALTH    V.    GREEN.  [CHAP.  XI. 

irreproachable  conduct,  may  have  obtained  the  confidence  of  his  fel- 
low-citizens, and  even  their  sutfrages  for  the  most  important  offices, 
may  be  met  in  a  court  of  justice  by  some  obsolete  record  of  a  conviction 
of  some  crime,  perhaps  merely  political,  which  may  be  deemed  infamous 
in  the  country  from  which  he  came  ;  and  can  have  no  power  of  effacing 
the  stain,  without  soliciting  a  pardon  where  he  may  be  wholly  forgotten, 
and  where  there  can  be  no  evidence  of  such  a  change  of  life  and  manners 
as  would  entitle  him  to  the  clemency  of  the  offended  power. 

It  is  these  difficulties,  with  others  which  might  be  mentioned,  which 
justify  the  principle  that  appears  to  be  adopted  by  the  English  courts ; 
and  which  we  are  disposed  to  think  is  a  maxim  of  general  law,  recog- 
nized by  all  nations,  viz.  that  the  penal  laws  of  a  country'  do  not  reach, 
in  their  effects,  bej'ond  the  jurisdictTon  where  they  are  establisliedl  'it 
is  so  laid  down  by  an  eminent  judge  in  the  case  of  Folliott  v.  Ogden, 
1  H.  Black.  131,  and  in  a  treatise  of  public  law  by  Martens,  the  same 
principle  is  advanced  in  more  extensive  and  unlimited  terms.  In  the 
24th  section  of  his  work  he  says,  "The  criminal  power  being_confined 
to  the  territory,  no  act  of  its  authority  can  be  exercised_ixL_£w:eiga 
countries  without  violating  their  righta.."  In  the  2oth  section  he  says, 
"By  the  same  principles  a  sentence,  which  attacks  the. hoftor,  rights^ 
or  propert}'  of  a  criminal,  cannot  extend  beyond  the  limits  of  tlie  terri- 
tory of  the  sovereignwho  pronounced  it.  So  that  he  who  has  been 
declared  infamous  in  one  countr}'  is  infamous  in  a  foreign  country  in 
fcict^  but  not  in  law  ;  "  which  terms  the  author  probably  uses  in  allu- 
sion to  the  civil  law,  resembling,  in  some  degree,  our  distinction  be- 
tween competenc}'  and  credibility.  By  infamia  juris  is  meant  infamy 
established  b}'  law  as  the  consequence  of  crime  ;  infainia  facti  is  where 
the  party  is  supposed  to  be  guilty  of  such  crime,  but  it  has  not  been 
judiciall}'  proved.  "  And  the  confiscation  of  his  propertv  cannot  affect 
his  property-  situated  in  a  foreign  country.  To  deprive  him  of  his  honor 
and  propert}' judicially  there  also,  would  be  to  punish  him  a  second  time 
for  the  offence."  To  refuse  a  man  the  right  to  be  a  witness  on  account 
of  a  conviction  in  another  country,  would  be  to  suffer  that  conviction  to 
have  force  here,  and,  in  some  measure,  to  carry  it  into  execution. 

If  it  be  said  that  it  will  be  dangerous  to  the  lives  and  reputations  of 
the  citizens,  that  foreigners,  who  have  been  rendered  infamous  abroad, 
should  be  admitted  to  testify  against  them,  the  answer  is,  that  their 
former  condition  and  character  may  be  made  known  to  the  jury  to  en- 
able them  to  judge  of  their  credibility  ;  and  this  without  depriving  thera 
of  any  valuable  personal  right  by  reason  of  their  conviction  abroad. 
Their  right  to  stand  in  court  as  probi  et  Icgnles  homines  is  sustained  ; 
but  as  all  other  men,  the  value  of  the  testimony  is  to  be  estimated  by 
their  general  reputation,  and  even  by  the  proof  of  particular  facts 
showing  a  conviction  and  punishment  for  crime ;  and  the  effect  of 
such  proof  may  be  always  reV)uttcd  by  evidence  of  good  conduct, 
a  virtuous  life,  etc. 

Infamy  is,  in   truth,  part  of  the   punishment  of  the  crimen  Jxtlsi, 


SECT.  I.]  COMMONWEALTH   V.    GREEN.  597 

although  not  expressed  in  the  sentence  ;  and  it  creates  a  disability  to 
testify,  just  as  excommunication  in  a  spiritual  court  does  to  sue  in  the 
courts  of  common  law.     To  hold  a  person  incompetent  on  account  of  ' 

(such  a  conviction,  is  to  give  effect  to  the  conviction,  and  to  enforce  the 
punishment ;  and  thus  the  penal  laws  of  one  country  would  reach  into 
others,  contrary  to  the  principle  above  stated. 
It  would  seem  to  be  consistent  with  sound  principles  also  that,  wher- 
ever there  is  a  crime  or  punishment  remaining  in  force,  there  should  be  a 
power  of  pardon  ;  but  the  act  of  pardon  cannot  operate  upon  an  offence 
committed  under  another  jurisdiction  ;  nor  can  it  extend  beyond  the 
jurisdiction  of  the  offended  sovereign.  So  that  one  who  has  once  ex- 
posed himself  to  a  punishment  which  renders  him  infamous  in  the 
country  where  the  offence  was  committed,  must  be  perpetually  stig- 
matized if  he  remove  into  another  country.  This  is  sufficient  to  show 
the  reasonableness  of  limiting  the  penal  effects  of  crime  to  the  country 
whose  laws  have  been  violated. 

We  do  not  find,  after  a  careful  examination,  as  well  by  the  counsel  for 
the  prisoners,  as  by  ourselves,  that  the  question  before  us  has  arisen  in 
the  English  courts,  or  in  those  of  any  of  the  United  States.  All  the 
cases  in  the  English  books  in  which  objections  were  made  to  the  com- 
petency of  witnesses  on  the  ground  of  infamy,  seem  very  clearly  to  have 
been  cases  of  conviction  in  some  of  their  own  courts.  Indeed  the 
strictness  of  the  rule  under  which  such  evidence  is  admitted,  seems 
almost  necessarily  to  exclude  conviction  in  any  foreign  court.  The 
objector  must  have  tlie  record  in  his  hands,  and  must  show  not  only  a 
conviction,  but  a  judgment  thereon.  We  think  the  silence  of  the  I^ng- 
lish  books  on  this  subject,  even  among  the  multitude  of  treatises  on 
evidence,  which  have  lately  issued  from  the  press,  furnishes  strong 
reasons  to  believe  that  objections  of  this  nature,  if  heard  at  all,  only  go 
to  the  credibility  of  witnesses. 

The  only  book  we  have  seen  which  intimates  a  different  doctrine 
is  one  upon  the  principles  of  evidence,  by  a  Mr.  Glassford  of  Scotland, 
referred  to  in  the  argument  for  the  prisoner ;  a  respectable  writer,  but 
hitherto  unknown  to  the  courts  of  law  in  this  country.  Speaking  of  in- 
competency by  reason  of  infamy,  he  inquires  into  the  proof  necessary 
to  establish  the  fact;  and  supposes  that  an  exemplification  of  a  record, 
from  England  or  Ireland,  would  be  received  as  proof  in  Scotland.  How 
far  the  peculiar  organization  of  the  Scotch  courts,  and  the  system  of 
rules  by  which  they  are  governed,  may  have  had  an  effect  on  their  law 
of  evidence,  we  cannot  know  ;  nor  whether  the  circumstance,  that  the 
>  three  countries  are  under  one  sovereign,  and  one  legislative  power,  may 
not  have  had  its  effects.  The  examples  produced  by  the  writer  are 
from  England  and  Ireland  only  ;  and  from  this  it  would  seem  that  his 
doctrine  would  not  apply  to  the  records  of  a  country  strictly  foreign. 
Indeed  such  records  cannot  properly  be  exemplified;  but  must  be 
proved  bv  testimony,  as  other  facts  are  proved. 

But  it  has  been  argued  by  the  counsel  for  the  prisoner,  that,  although 


598  GATES   V.    BINGHAM.  [CHAP.  XL 

a  conviction  in  a  court  of  a  country  strictly  foreign,  should  not  be  held 
to  take  away  the  competency  of  a  witness,  yet  that  such  is  the  relation 
of  the  several  States  which  compose  the  American  Union  with  each 
other,  that  the  same  law  ought  not  to  prevail  here,  as  the  States  are 
not  in  fact  foreign  to  each  other.   .  .   . 

We  have  come  to  the  opinion  that  there  is  no  difference  in  the  effect 
of  a  conviction,  in  regard  to  the  competency  of  a  witness,  between  any 
State  in  this  Union  and  any  foreign  State  ;  and  that  in  neither  case  is 
the  witness  to  be  excluded  on  account  of  such  conviction.^ 


GATES  V.   BINGHAM. 

Supreme  Court  of  Errors,  Connecticut.     1881. 

[Eeported  49  Connecticut,  275.] 

Assumpsit  for  the  rent  of  a  house,  brought  to  the  Court  of  Common 
Pleas,  and  tried  to  the  court,  on  the  general  issue  with  notice,  before 
Mather.  J.     The  following  facts  were  found  by  the  court :  — 

In  1871  Charles  M.  Pendleton  was  appointed  by  the  court  of  probate 
for  the  district  of  Norwich  in  this  State,  conservator  of  the  defendant, 
•who  was  then  a  resident  of  the  town  of  Norwich  ;  the  court  finding 
that  by  reason  of  improvidence  and  prodigality  he  had  become  in- 
capable of  managing  his  affairs.  Bingham  was  at  that  time  twenty- 
three  vears  of  age.  Pendleton  duly  qualified  as  conservator  and  has 
never  been  removed.  ...  In  December,  1876,  the  defendant  married 
in  Worcester,  and  at  that  time  hired  of  the  plaintiff  a  tenement  there, 
at  the  rate  of  fifteen  dollars  a  month,  payable  at  the  end  of  every 
month,  where  he  resided  with  his  wife  till  October  13,  1877. 

The  defendant  paid  the  rent  of  this  tenement  until  the  15th  of  July, 
1877,  but  the  rent  from  that  time  until  October  13  has  never  been 
paid,  and  for  the  recovery  of  it  this  suit  is  brought.  The  tenement 
was  a  suitable  one  for  himself  and  family,  and  the  rent  reasonable, 
and  the  defendant  and  his  family  during  the  time  were  not  otherwise 
provided  with  lodging.  His  conservator  knew  that  he  had  hired  a 
tenement  of  the  plaintiff,  and  sent  money  to  the  defendant  at  times 
to  pay  the  rent.  The  plaintiff  was  informed  by  the  defendant  that  he 
had  a  conservator. 

The  defendant  requested  the  court  to  rule  that  his  disability  by 
reason  of  the  appointment  of  a  conservator  followed  and  was  attached 
to  his  person ;    and  that  to  render  him  liable  in  this  suit,  the  same 

1  Ace.  Sims  V.  Sims,  75  N.  Y.  466  ;  C.  v.  Hanlon,  S  Brewst.  461  (semble).  Contra, 
Clark  V.  Hall,  2  H.  &  M'H.  378  {scmble)  ;  S.  v.  Foley,  15  Nev.  64  ;  Chase  v.  Blodgett, 
10  N.  H.  24  ;  S.  v.  Candler,  3  Hawks,  393.  See  Campbell  v.  S.,  23  Ala.  44  ;  Klein  v. 
Dinkgrave,  4  La.  Ann.  540  ;  Uhl  i-.  C,  6  Grat.  706.  —  Ed. 


SECT    I.]  GATES   V.    BINGHAM.  699 

approval  of  the  contract  by  the  conservator  would  be  required  as  would 
have  been  necessary  if  he  had  continued  to  reside  in  this  State.  The 
court  refused  so  to  rule  ;  but  ruled  that  the  law  of  the  place  where  the 
contract  was  made  should  govern,  and  that  the  disability  of  the  defend- 
ant, b}'  reason  of  the  conservatorship,  only  continued  while  he  resided 
within  the  jurisdiction  of  this  State. 

Upon  these  facts  the  court  rendered  judgment  for  the  plaintiff.  The 
defendant  brought  the  record  before  this  court  by  a  motion  in  error.^ 

f^  Granger,  J.  There  is  clearly  no  error  in  the  charge.  The  dis- 
abilit}'  under  which  one  is  placed,  with  regard  to  his  power  to  make 
contracts,  b}'  having  a  conservator  appointed  over  him,  is  created 
wholly  by  statute,  and  can  have  no  operation  where  the  statute  does 
not  operate.  It  is  a  well  settled  principle  that  no  statute  can  operate 
beyond  the  territorial  limits  of  the  State  in  which  it  was  enacted. 
While  the  defendant  was  residing  in  the  State  of  Massachusetts  he  was 
sui  juris,  and  if  incapable  of  managing  his  own  affairs  the  only  mode 
of  securing  a  legal  supervision  for  him  was  by  proceeding  under  the 
laws  of  that  State  in  the  same  manner  as  in  the  case  of  an}-  other  of 
its  inhabitants.  The  defendant  had  in  fact  become  an  inhabitant  and 
citizen  of  that  State,  and  had  ceased  to  be  a  citizen  of  Connecticut. 

It  does  not  affect  the  case  that  the  suit  is  brought  in  this  State. 
The  contract  upon  which  it  is  brought,  being  a  valid  and  binding  one 
in  the  State  where  it  was  made,  is  equally  valid  and  binding  in  this 
State. 

It  cannot  affect  the  case  that  the  plaintiff  knew  that  the  defendant 
was  under  a  conservator  in  Connecticut.  Since  he  was  legally  free 
from  the  control  of  the  conservator  in  Massachusetts,  the  fact  that  he 
had  previously  been  under  a  conservator  in  this  State  was  of  no 
importance. 

There  is  no  error  in  the  judgment  complained  of. 

In  this  opinion  the  other  judges  concurred. 

1  Part  of  the  statement  of  facts  aud  the  arguments  are  omitted.  —  Ed. 


600  WORMS   V.    DE    VALDOR.  [CHAP.    XI. 

WORMS  V.  DE  VALDOR. 
High  Couut  of  Justice,  Chancery  Division.     1880. 

[Reported  49  Law  Journal,  New  Series,  Chancery,  261.] 

This  was  an  action  for  the  delivery  up  and  cancellation  of  certain 
bills  of  exchange  accepted  by  the  plaintiiT,  a  French  subject  in  France. 

Objections  were  taken  in  the  several  statements  of  defence  that  the 
plaintiff,  b}'  French  law,  was  incapacitated  from  suing  without  the 
intervention  of  his  "  Conseil  Judiciaire,"  by  reason  of  liis  having  been 
adjudicated  a  "prodigal,"  and  placed  under  a  "Conseil  de  Famille"  by 
the  Tribunal  of  First  Instance  of  the  department  of  the  Seine,  the  duly 
authorized  court  in  France  for  that  purpose.^ 

Fry,  J.  The  first  objection  which  has  been  raised  to  the  plaintiff's 
case  is  founded  upon  the  fact  that  some  time  prior  to  the  date  of  the 
bills  of  exchange  he  had  been  placed  under  that  proceeding  of  the 
French  law  which  is  known  as  "  Conseil  de  Famille,"  and  it  is  said 
that  that  fact  prevents  his  being  able  to  sue  in  this  court.  That  argu- 
ment is  based  upon  the  13th  section  of  the  Code  Civil,  which  prevents 
"prodigals,"  among  other  things,  from  pleadhig  without  the  assistance 
of  counsel,  who  may  be  assigned  by  the  court.  I  declined  to  stop  the 
case  on  that  preliminary  objection,  inclining  to  the  view  that  if  a  change 
of  status  were  effected  by  an  order  of  a  French  court,  this  court  would 
not  take  notice  of  a  personal  disqualification  caused  by  sflch  change  of 
status.  Assuming  the  proposition  to  be  true  that  a  personal  disquali- 
fication was  introduced  by  the  judgment  of  the  French  court,  I  still 
adhere  to  that  view,  and  I  read  a  passage  from  Mr.  Justice  Story's 
"  Conflict  of  Laws  "  (§  104)  as  expressing  the  view  I  entertain  :  "  Per- 
sonal disqualifications  not  arising  from  the  Law  of  Nature,  but  from  the 
principles  of  the  customary  or  positive  law  of  a  foreign  country,  and 
especially  such  as  are  of  a  penal  nature,  are  not  generalh-  regarded  in 
other  countries  where  the  like  disqualifications  do  not  exist ;  hence  the 
disqualification  resulting  from  heresy,  excommunication.  Popish  recu- 
sanc}',  infamy,  and  other  penal  disabilities,  are  not  enforced  in  any 
other  country  except  that  in  wliich  they  originate.  They  are  strictly 
territorial,  so  the  state  of  slavery  will  not  be  recognized  in  any  country 
where  institutions  and  policy  prohibit  slaver}'."  The  learned  author 
niiglit  have  gone  further  with  res[)ect  to  slaver}-,  for  it  is  well  known 
that  in  the  celebrated  case  of  Somerset,  20  Howell's  State  Trials,  1, 
the  courts  of  this  countr}-,  where  villenage  has  never  been  abolished, 
declined  to  recognize  the  status  of  slavery  resulting  from  the  legisla- 
tion of  any  other  countr}-. 

It  appears  to  me,  however,  that  upon  the  point  which  is  left  for  me 
to  decide  without  the  assistance  of  any  French  lawyers,  that  a  part  of 
the  proceedings  referred  to  was  not  to  change  the  status  of  the  plaintiff. 
^  Aifnimt^nts  of  counsel  are  omitted.  —  Ed. 


SECT.    II. J  HYDE    V.    HYDE.  601 

According  to  French  jurisprudence,  before  the  passing  of  the  Code 
Napoleon,  prodigality  was  one  of  the  grounds  which  is  known  as  inter- 
diction :  such  interdiction  as  was  passed  in  the  case  of  a  lunatic,  for 
instance.  But  b}'  the  code  matters  were  altered  in  that  respect,  and  an 
interdict  cannot  now  be  passed  against  a  person  on  the  ground  of 
prodigality.  I  find  this  laid  down  in  Toullier's  work  on  French  law 
(2  Le  Droit  Civil  FranQais,  5th  ed.  443):  "  L'ancienne  jurisprudence 
avait  mis  la  prodigalite  au  nombre  des  causes  qui  pouvaieut  faire  inter- 
dire  un  majeur ;  raais  le  Code  n'en  admet  plus  d'autres  que  I'etat 
habituel  d'imbecilite  de  demence  ou  de  fureur."  Then  he  says  (lb.  476)  : 
"  A  la  difference  de  I'interdiction  qui  opere  un  veritable  changement 
d'etat,  la  nomination  d'un  conseil  judiciaire  n'en  opere  aucun  dans  la 
personne  qui  sS'  trouve  soumise  ;  elle  continue  d'exercer  par  elle-meme 
toutes  ses  actions,  tons  ses  droits  civiles  et  politiques  de  voter  dans  les 
assemblees  de  famille  et  dans  les  assemblees  primaires  et  electorales, 
de  faire,  en  un  mot,  tons  les  actes  de  la  vie  civile :  elle  est  seulement 
assujettie  a  prendre  pour  certains  actes  d'exception  I'avis  du  conseil, 
qui  doit  la  premunircontre  les  erreurs  et  les  surprises  auquelles  elle  est 
exposee  dans  la  disposition  des  ses  biens  ou  dans  la  direction  de  ses 
affaires."  There  being,  therefore,  no  change  of  status  but  merely  a  re- 
quirement of  French  law  in  particular  cases,  it  appears  to  me  that  that 
does  not  prevent  the  plaintiff  in  this  case  from  suing  in  this  action. 


SECTION  II. 

MARRIAGE.     ■ 

HYDE  V.  HYDE. 
Court  for  Divorce  and  Matrimoxial  Causes.     1866. 

[Reported  Law  Beports,  1  Probate  and  Divorce,  130.] 

Lord  Penzance,  Judge  Ordinar}-.  The  petitioner  in  this  case  claims 
a  dissolution  of  his  marriage  on  the  ground  of  the  adulter}-  of  his  wife. 
The  alleged  marriage  was  contracted  at  Utah,  in  the  territories  of  the 
United  States  of  America,  and  the  petitioner  and  the  respondent  both 
professed  the  faith  of  the  Mormons  at  the  time.  The  petitioner  has 
since  quitted  Utah,  and  abandoned  the  faith,  but  the  respondent  has 
not.  After  the  petitioner  had  left  Utah,  the  respondent  was  divorced 
from  him,  apparentl}'  in  accordance  with  the  law  obtaining  among  the 
Mormons,  and  has  since  taken  another  husband.  This  is  the  adultery 
complained  of. 

Before  the  petitioner  could  obtain  the  relief  he  seeks  some  matters 
would  have  to  be  made  clear  and  others  explained.  The  marriage,  as 
it  is  called,  would  have  to  be  established  as  binding  by  the  lex  loci,  the 
divorce  would  have  to  be  determined  void,  and  the  petitioner's  conduct 


602  HYDE   V.    HYDE.  [CHAP.    XI. 

in  wilfully  separating  himself  from  his  wife  would  have  to  be  accounted 
for.  But  I  expressed  at  the  hearing  a  strong  doubt  whether  the  union 
of  man  and  woman  as  practised  and  adopted  among  tlie  Mormons  was 
reall}-  a  marriage  in  the  sense  understood  in  this,  the  Matrimonial 
Court  of  England,  and  whether  persons  so  united  could  be  considered 
"husband"  and  "wife"  in  the  sense  in  wiiich  these  words  must  be 
interpreted  in  the  Divorce  Act.  Further  reflection  has  confirmed  this 
doubt,  and  has  satisfied  me  that  this  court  cannot  properly  exercise  any 
jurisdiction  over  such  unions. 

Marriage  has  been  well  said  to  be  something  more  than  a  contract, 
either  religious  or  civil  —  to  be  an  institution.  It  creates  mutual  rights 
and  obligations,  as  all  contracts  do,  but  be^-ond  that  it  confers  a  status. 
The  position  or  status  of  "  husband  "  and  "  wife  "  is  a  recognized  one 
throughout  Christendom :  the  laws  of  all  Christian  nations  throw  al)Out 
this  status  a  variety  of  legal  incidents  during  the  lives  of  the  parties, 
and  induce  definite  rights  upon  their  offspring.  What,  then,  is  the 
nature  of  this  institution  as  understood  in  Christendom?  Its  incidents 
varv  in  different  countries,  but  what  are  its  essential  elements  and  in- 
variable features?  If  it  be  of  common  acceptance  and  existence,  it 
must  needs  (however  varied  in  different  countries  in  its  minor  incidents) 
have  some  pervading  identity  and  universal  basis.  I  conceive  that 
marriage,  as  understood  in  Christendom,  may  for  this  purpose  be  de- 
fined as  the  voluntary  union  for  life  of  one  man  and  one  woman,  to  the 
exclusion  of  all  others. 

There  are  no  doubt  countries  peopled  by  a  large  section  of  the  human 
race  in  which  men  and  women  do  not  live  or  cohabit  together  upon 
these  terms  —  countries  in  which  this  institution  and  status  are  not 
known.  In  such  parts  the  men  take  to  themselves  several  women, 
whom  the}' jealously  guard  from  the  rest  of  the  world,  and  whose  num- 
ber is  limited  only  by  considerations  of  material  means.  But  the  status 
of  these  women  in  no  way  resembles  that  of  the  Christian  "  wife."  In 
some  parts  they  are  slaves,  in  others  perhaps  not ;  in  none  do  they 
stand,  as  in  Christendom,  upon  the  same  level  with  the  man  under 
whose  protection  they  live.  There  are,  no  doubt,  in  these  countries 
laws  adapted  to  this  state  of  things — laws  which  regulate  the  duties 
and  define  the  obligations  of  men  and  women  standing  to  each  other  in 
these  relations.  It  may  be,  and  probably  is,  tlie  case  that  the  women 
there  pass  by  some  word  or  name  vp'hich  corresponds  to  our  word 
"  wife."  But  there  is  no  magic  in  a  name  ;  and,  if  the  relation  tliere 
existing  between  men  and  women  is  not  the  relation  which  in  Christen- 
dom we  recognize  and  intend  by  the  words  "  husband"  or  "  wife," 
but  another  and  altogether  different  relation,  the  use  of  a  common  term 
to  express  these  two  separate  relations  will  not  make  them  one  and 
the  same,  though  it  may  tend  to  confuse  them  to  a  superficial  observer. 
The  language  of  Lord  Brougham,  in  Warrender  tu  "Warrender,  2  CI.  & 
F.  T)?.!,  is  very  appropriate  to  these  considerations  :  "  If,  indeed,  there 
go  two  things  under  one  and  the  same  name  in  different  countries  —  if 


SECT.    II.]  HYDE    V.    HYDE.  603 

that  which  is  culled  marriage  is  of  a  different  nature  in  each  —  there 
may  be  some  room  for  holding  that  we  are  to  consider  the  thing  to 
which  the  parties  have  bound  themselves  according  to  its  legal  ac- 
ceptance in  the  country  where  the  obligation  was  contracted.  But 
marriage  is  one  and  the  same  thing  substantially  all  the  Christian  world 
over.  Our  whole  law  of  marriage  assumes  this  ;  and  it  is  important  to 
observe  that  we  regard  it  as  a  wholly  different  thing,  a  different  siatus 
from  Turkish  or  other  marriages  among  infidel  nations,  because  we 
clearly  should  never  recognize  the  plurality  of  wives,  and  consequent 
validity  of  second  marriages,  standing  the  first,  which  second  marriages 
the  laws  of  those  countries  authorize  and  validate.  This  cannot  be 
put  on  any  rational  ground,  except  our  holding  the  infidel  marriage  to 
be  something  different  from  the  Christian,  and  our  also  holding  the 
Christian  marriage  to  be  the  same  everywhere.  Therefore,  all  that  the 
courts  of  one  country  have  to  determine  is  whether  or  not  the  thing 
called  marriage  —  that  known  relation  of  persons,  that  relation  which 
those  courts  are  acquainted  with,  and  know  how  to  deal  with  —  has 
been  validly  contracted  in  the  other  country  where  the  parties  pro- 
fessed to  bind  themselves.  If  the  question  is  answered  in  the  affirma- 
tive, a  marriage  has  been  had  ;  the  relation  has  been  constituted  ;  and 
those  courts  will  deal  with  the  rights  of  the  parties  under  it  according 
to  the  principles  of  the  municipal  law  which  they  administer."  "In- 
deed, if  we  are  to  regard  the  nature  of  the  contract  in  this  respect  as 
defined  by  the  lex  loci,  it  is  difficult  to  see  wh}-  we  may  not  import  from 
Turkey  into  England  a  marriage  of  such  nature  as  that  it  is  capable 
of  being  followed  by,  and  subsisting  with,  another,  pol^-garaj'  being 
there  the  essence  of  the  contract." 

Now,  it  is  obvious  that  the  matrimonial  law  of  this  country  is  adapted 
to  the  Christian  marriage,  and  it  is  wholly  inapplicable  to  polygam\ 
The  matrimonial  law  is  correspondent  to  the  rights  and  obligation 
which  the  contract  of  marriage  has,  b}-  the  common  understanding  of 
the  parties,  created.  Thus  conjugal  treatment  may  be  enforced  by  a 
decree  for  restitution  of  conjugal  rights.  Adultery  by  either  party 
gives  a  right  to  the  other  of  judicial  separation  ;  that  of  the  wife  gives 
a  right  to  a  divorce  ;  and  that  of  the  husband,  if  coupled  with  bigamy, 
is  followed  by  the  same  penalty.  Personal  violence,  open  concubi- 
nage, or  debauchery  in  face  of  the  wife,  her  degradation  in  her  home 
from  social  equality  with  the  husband,  and  her  displacement  as  the 
head  of  his  household,  are  with  us  matrimonial  offences,  for  they  vio- 
late the  vows  of  wedlock.  A  wife  thus  injured  may  claim  a  judicial 
separation  and  a  permanent  support  from  the  husband  under  the  name 
of  alimony  at  the  rate  of  about  one  third  of  his  income.  If  these  and 
the  like  provisions  and  remedies  were  applied  to  polygamous  unions, 
the  court  would  be  creating  conjugal  duties,  not  enforcing  them,  and 
furnishing  remedies  when  there  was  no  offence.  For  it  would  be  quite 
unjust  and  almost  absurd  to  visit  a  man  who,  among  a  polygamous 
community,  had  married  two  women,  with  divorce  from  the  first  woman, 


is    j 


604  HYDE   V.    HYDE.  [CHAP.    XI. 

on  the  ground  that,  in  our  view  of  marriage,  his  conduct  amounted  to 
adultery  coupled  with  bigamy.  Nor  would  it  be  much  more  just  or 
wise  to  attempt  to  enforce  upon  him  that  he  should  treat  those  with 
whom  he  had  contracted  marriages,  in  the  polygamous  sense  of  that 
term,  with  the  consideration  and  according  to  the  status  which  Chris- 
tian marriage  confers. 

If,  then,  the  provisions  adapted  to  our  matrimonial  system  are  not 
applicable  to  such  a  union  as  the  present,  is  there  any  other  to  which 
the  court  can  resort?  We  have  in  P^ngland  no  law  framed  on  the  scale 
of  polygamy,  or  adjusted  to  its  requirements.  And  it  may  be  well 
doubted  whether  it  would  become  the  tribunals  of  this  country  to  en- 
force the  duties  (even  if  we  knew  them)  which  belong  to  a  system  so 
utterly  at  variance  with  the  Christian  conception  of  marriage,  and  so 
revolting  to  the  ideas  we  entertain  of  the  social  position  to  be  accorded 
to  the  weaker  sex. 

This  is  hardly  denied  in  argument,  but  it  is  suggested  that  the  matri- 
monial law  of  this  country  may  be  properly  applied  to  the  first  of  a 
series  of  polygamous  unions  ;  that  this  court  will  be  justified  in  treating 
such  first  union  as  a  Christian  marriage,  and  all  subsequent  unions,  if 
any,  as  void ;  the  first  woman  taken  to  wife  as  a  "  wife  "  in  the  sense 
intended  by  the  Divorce  Act,  and  all  the  rest  as  concubines.     The  in- 
consistencies that  would  flow  from  an  attempt  of  this  sort  are  startling 
enough.     Under  the  provisions  of  the  Divorce  Acts  the  duty  of  cohab- 
itation is  enforced  on  either  party  at  the  request  of  the  other,  in  a  suit 
for  restitution  of  conjugal  rights.     But  this  duty  is  never  enforced  on 
one  party  if  the  other  has  committed  adultery.     A  Mormon  husband, 
therefore,  who  had  married  a  second  wife,  would  be  incapable  of  this 
remedy,  and  this  court  could  in  no  way  assist  him  towards  procuring 
him  tlie  society  of  his  wife  if  she  chose  to  withdraw  from  him.     And 
yet,  by  the  very  terms  of  his  marriage  compact,  this  second  marriage 
was  a  thing  allowed  to  him,  and  no  cause  of  complaint  in  her  who  had 
acquiesced  in  tliat  compact.     And  as  the  power  of  enforcing  the  duties 
of  marriage  would  thus  be  lost,    so  would  the  remedies  for  breach  of 
marriage  vows  be  unjust  and  unfit.     For  a  prominent  provision  of  the 
Divorce  Act  is  that  a  woman  whose  husband  commits  adultery  may  ob- 
tain a  judicial  separation  from  him.     And  so  utterly  at  variance  with 
Christian    marriage  is   the   notion  of  permitting  the  man  to  marry  a 
second  woman  that  the  Divorce  Act  goes  furthei-,    and  declares  that  if 
the  husband  is  guilty  of  bigamy  as  well  as  adultery,  it  shall  be  a  ground 
of  divorce  to  the  wife.     A  Mormon,  therefore,  who  had,  according  to 
the  laws  of  his  sect,   and  in  entire  accordance   with   the  contract  and 
understanding  made  with  the  first  woman,  gone  tln-ougli  the  same  cere- 
mony witli  a  second,  raiglit  find  himself  in  the  predicament,   under  the 
application   of  English   law,    of   having   no  wife   at   all  :   for   the  first 
woman  might  obtain  divorce  on  the  ground  of  his  bigamy  and  adultery, 
and  tlie  second  might  claim  a  decree  declaring  the  second   ceremony 
void,  as  he  had  a  wife  living  at  the  time  of  its  celebration  ;  and  all  this 


SECT.    II.]  HYDE    V.    HYDE.  605 

without  any  act  done  with  which  he  would  be  expected  to  reproach 
himself,  or  of  which  either  woman  would  have  the  slightest  right  to 
complain.  These  difficulties  may  be  pursued  further  in  the  reflection 
that  if  a  Mormon  had  married  fifty  women  in  succession,  this  court 
might  be  obliged  to  pick  out  the  fortieth  as  his  only  wife,  and  reject 
the  rest.  For  it  might  well  be  that  after  the  thirty-ninth  marriage  the 
first  wife  should  die,  and  the  fortieth  union  would  then  be  the  only 
valid  one,  the  tliirty-eight  intervening  ceremonies  creating  no  matri- 
monial bond  during  the  first  wife's  life. 

Is  the  court,  then,  justified  in  thus  departing  from  the  compact  made 
by  the  parties  themselves?  Offences  necessarily  presuppose  duties. 
There  are  no  conjugal  duties  but  those  which  are  expressed  or  implied 
in  the  contract  of  marriage.  And  if  the  compact  of  a  polygamous 
union  does  not  carry  with  it  those  duties  which  it  is  the  office  of  the 
marriage  law  in  this  country  to  assert  and  enforce,  such  unions  are  not 
within  the  reach  of  that  law.     So  much  for  the  reason  of  the  thing. 

There  is,  I  fear,  little  to  be  found  in  our  books  in  the  way  of  direct 
authority.  But  there  is  the  case  of  Ardaseer  Cursetjee  v.  Perozeboye, 
10  jVIoo.  p.  C.  375,  419,  in  which  the  Privy  Council  distinctly  held  that 
Parsee  marriages  were  not  within  the  force  of  a  charter  extending  the 
jurisdiction  of  the  ecclesiastical  courts  to  Her  Majesty's  subjects  in 
India,  '•  so  far  as  the  circumstances  and  occasions  of  the  said  people 
shall  require."  And  the  following  passage  sufficiently  indicates  the 
grounds  upon  which  the  court  proceeded  :  "  We  do  not  pretend  to 
know  what  may  be  the  duties  and  obligations  attending  upon  the 
matrimonial  union  between  Parsees,  nor  what  remedies  may  exist  for 
the  violation  of  them  ;  but  we  conceive  that  there  must  be  some  laws 
or  some  customs  having  the  effect  of  laws  which  apply  to  the  married 
state  of  persons  of  this  description.  It  may  be  that  such  laws  and 
customs  do  not  afljord  what  we  should  deem,  as  between  Christians,  an 
adequate  relief;  but  it  must  be  recollected  that  the  parties  themselves 
could  have  contracted  for  the  discharge  of  no  other  duties  and  obligations 
than  such  as  from  time  out  of  mind  were  incident  to  their  own  caste, 
n.or  could  they  reasonably  have  expected  more  extensive  remedies,  if 
aggrieved,  than  were  customarily  afforded  bj'  their  own  usages." 

In  conformit}-  with  these  views  the  court  must  reject  the  pra3'er  of 
this  petition,  but  I  may  take  the  occasion  of  here  observing  that  this 
decision  is  confined  to  that  object.  This  court  does  not  profess  to  de- 
cide upon  the  rights  of  succession  or  legitimacy  which  it  might  be 
proper  to  accord  to  the  issue  of  the  polygamous  unions,  nor  upon  the 
rights  or  obligations  in  relation  to  third  persons  which  people  living 
under  the  sanction  of  such  unions  may  have  created  for  themselves. 
All  that  is  intended  to  be  here  decided  is  that  as  between  each  other 
they  are  not  entitled  to  the  remedies,  the  adjudication,  or  the  relief  of 
the  matrimonial  law  of  England.  Petition  dismissed.^ 

^  Following  this  case,  it  was  decided  by  Stirling,  J.,  In  re  Bethell,  38  Ch.  D.  220, 
that  the  issue  of  a  marriage  contracted  ia  South  Africa  between  an  Englishman  and  a 


fi06  SUTTON   V.   WARREN.  [CHAP.    XI. 


SUTTON   V.   WARREN. 
SuPREMK  Judicial  Court  of  Massachusetts.     1845. 

[Reported  10  Metcalf,  451.] 

Assumpsit  on  a  promissory  note  for  $1,300,  given  by  the  defendant  to 
Ann  Sutton,  on  the  10th  of  August,  1840.  The  case  was  submitted  to 
the  court  upon  the  following  facts  agreed  on  by  the  parties  :  — 

The  note  declared  on  was  given  for  money  lent  by  Ann  Sutton  to 
the  defendant.  The  plaintiff  and  said  Ann  Sutton  are  natives  of 
England,  and  were  married  at  Duffleld,  in  England,  on  the  28th  of 
November,  1834.  About  one  year  after  their  marriage,  they  came 
to  this  countr}',  where  they  have  lived,  as  hufband  and  wife,  ever 
since.  The  said  Ann  was  the  own  sister  of  the  mother  of  the  said 
Samuel  Sutton,  the  plaintiff,  and  has  always  since  said  marriage  gone 
by  the  name  of  Ann  Sutton.     Her  former  name  was  Ann  Hills. 

Judgment  to  be  rendered  for  the  plaintiff,  if  the  court  are  of  opinion 
that  he  is  entitled  to  recover ;  otherwise,  he  is  to  be  nonsuit.^ 

Hubbard,  J.  It  is  a  well-settled  principle  in  our  law  that  marriages 
celebrated  in  other  States  or  countries,  if  valid  by  the  law  of  the  country 
where  they  are  celebrated,  are  of  binding  obligation  within  this  Com- 
monwealth, although  the  same  might,  by  force  of  our  laws,  be  held 
invalid,  if  contracted  here.  This  principle  has  been  adopted,  as  best 
calculated  to  protect  the  highest  welfare  of  the  community  in  the  pres- 
ervation of  the  purity  and  happiness  of  the  most  important  domestic 
relation  in  life.  Greenwood  v.  Curtis,  6  Mass.  378  ;  Medway  v.  Need- 
ham,  16  Mass.  157;  West  Cambridge  v.  Lexington,  1  Pick.  506; 
Compton  V.  Bearcroft,  Bui.  N.  P.  114;  Scrimshire  v.  Scrimshire,  and 
Middleton  v.  Janverin,  2  Haggard,  395,  437.  There  is_jin  exception, 
however,  to  this  principle,  in  those  cases  where  the  marriage  is  con- 
sidered as  incestuous  by  the  law  of  Christianity,  and  as  against  natural 
law.  And  these  exceptions  relate  to  marriages  in  the  direct  lineal  line 
of  consanguinity,  and  to  those  contracted  between  brothers  and  sisters  ; 
and  the  exceptions  rest  on  the  ground  that  such  marriages  are  against 
the  laws  of  God,  are  immoral,  and  destructive  of  the  purity  and  happi- 
ness of  domestic  life.  But  I  am  not  aware  that  these  exceptions,  by 
any  general  consent  among  writers  u{)on  natural  law,  have  been  ex- 
native  woman,  accorJinj;  to  tho  native  custom,  could  not  take  as  legitimate.  The 
court  said  :  "  I  am  bound  to  hold  that  a  union  formed  between  a  man  and  a  woman 
in  a  foreign  country,  altliough  it  may  there  bear  the  name  of  a  marriage,  and  tlie  par- 
ties to  it  may  there  bo  designated  husband  and  wife,  is  not  a  valid  marriage  according 
to  the  law  of  England,  uidess  it  be  formed  on  the  same  basis  as  marriages  throughout 
Christendom,  and  be  in  its  essence  '  the  vohintary  union  for  life  of  one  man  and  one 
woman,  to  the  exclusion  of  all  others.'"  In  Brinkley  v.  Attorney-General,  15  P.  Div. 
76,  a  marriage  in  Jaj)an,  according  to  the  native  custom,  between  an  P^nglishman  and  s 
native,  was  lield  to  be  valid  in  England.  See  Re  Ullee,  53  L.  T.  Rep.  711.  —  Ed. 
*  Arguments  of  counsel  are  omitted.  —  Ed. 


SECT.   II.]  SUTTON   V.   WARREN.  607 

tended  further,  or  embraced  other  cases  prohibited  bj'  the  Levitical 
law.  This  subject  has  been  carefully  discussed  b}-  Chancellor  Kent,  in 
the  case  of  Wightraan  v.  Wightman,  4  Johns.  Ch.  343  ;  and  while  be  is 
clear  as  to  the  exceptions  before  stated,  he  thinks,  beyond  them  there 
is  a  diversit}'  of  opinion  among  commentators.  2  Kent  Com.,  Lect.  26. 
See  also  Story's  Conflict  of  Laws,  §§  113,  114.  There  is  also  a  pro- 
vision in  our  statutes,  making  marriages  void  in  this  State,  where  per- 
sons resident  in  the  State,  whose  marriage,  if  solemnized  here  would  be 
void,  in  order  to  evade  our  law,  and  with  the  intention  of  returning  to 
reside  here  again,  go  into  another  State  or  country-  and  there  have  their 
marriage  solemnized.  Rev.  Sts.,  c.  75,  §  6.  The  only  object  of  this 
provision  is,  as  stated  by  the  commissioners  in  their  report,  to  enforce 
the  observance  of  our  own  laws  upon  our  own  citizens,  and  not  to  suf- 
fer them  to  violate  regulations  founded  in  a  just  regard  to  good  morals 
and  sound  polic\'.  As  to  the  wisdom  of  this  provision  it  is  unnecessar}' 
here  to  speak.  But  the  provision  is  noticed,  to  show  that  it  has  not 
been  overlooked  in  the  consideration  of  the  case  at  bar,  which  presents 
no  such  state  of  facts. 

In  view  of  the  whole  matter,  considering  it  as  a  part  of  the  Jus  gen- 
tium,  we  do  not  feel  called  upon  to  extend  the  exceptions  further.  By 
our  statutes,  the  marriage  contracted  between  Samuel  Sutton,  the  plain- 
tiff, and  Ann  Hills,  his  mother's  sister,  if  celebrated  in  this  State,  would 
have  been  absolutely  void.  But  b}'  the  law  of  England,  this  marriage, 
at  the  time  it  was  contracted,  viz.  in  November,  1834,  was  voidable  onlj-, 
and  could  not  be  avoided  until  a  sentence  of  nullit}'  should  be  obtained  in 
the  spiritual  court,  in  a  suit  instituted  for  that  purpose.  See  Poynter 
on  Marriage  and  Divorce,  86,  120  ;  2  Stephen's  Com.  280.  In  The 
Queen  v.  Inhabitants  of  Wye,  7  Adolph.  &  Ellis,  771,  and  3  Nev.  &  P. 
13,  the  Court  of  King's  Bench  affirmed  the  doctrine,  and  held  such  a 
marriage  voidable  only,  and  that,  till  avoided,  it  was  valid  for  all  civil 
purposes.  Rose.  Crim.  Ev.  (2d  ed.)  286.  Since  this  marriage  was 
contracted,  the  St.  of  6  Wm.  IV.,  c.  54,  has  been  passed,  making  such 
marriages  which  should  afterwards  be  celebrated  absolutely  void. 

In  the  present  case,  the  marriage  of  these  parties  was  not  void  by  the 
laws  of  England,  though  Avoidable  in  the  spiritual  court.  It  never  was 
avoided,  and  though  absolutel}'  prohibited  by  our  laws,  yet  not  being 
within  the  exception,  as  against  natural  law,  we  do  not  feel  warranted 
in  saying  the  parties  are  not  husband  and  wife.  The  plaintiff,  Samuel 
Sutton,  sues  on  a  promissor}'  note  given  to  the  said  Ann  Sutton,  and,  as 
her  husband,  he  can  maintain  an  action  thereon,  in  his  own  name  alone, 
there  being  no  other  cause  of  objection  raised  than  the  one  stated  in  re- 
gard to  the  legalit}'  of  their  marriage.  Bayle}''  on  Bills  (2d  Amer.  ed.), 
42  ;   Clancy,  Husb.  &  Wife,  4. 

Judgment  for  the  plaintiff. 


608  UNITED  STATES  V.    RODGERS.  [CHAP.  XL 


UNITED   STATES   v.    RODGERS. 

District  Court  ok  thk  United  States,  E.  Dist.  of  Pennsylvania,  1901. 

[Reported    109  Federal  Reporter,  886.] 

J.  B.  McPherson,  District  Judge.  The  relator  is  a  naturalized 
citizen  of  the  United  States,  and  is  the  husband  of  Rosa  Devine,  and 
the  father  of  her  idiot  son,  William.  Rosa  and  William  are  Russian 
Jews,  whom  the  commissioner  of  immigration  at  the  port  of  Philadel- 
phia has  ordered  to  be  deported,  on  the  ground  that  both  are  aliens, 
and  that  William  is  an  idiot,  and  Rosa  is  a  pauper  that  is  likely  to  be- 
come a  public  charge.  The  alienage  of  both  is  denied  upon  the  ground 
that  when  the  husband  and  father  became  a  citizen  the  wife  and  child 
ceased  to  be  aliens  ;  and  this  is  the  only  point  to  be  decided.  The 
decision  is  admitted  to  depend  upon  the  answer  to  be  given  to  the 
question  whether  Rosa  is  the  relator's  lawful  wife,  or,  rather,  whether 
she  is  to  be  so  regarded  in  this  State  ;  for  she  is  her  husband's  niece, 
and  such  a  marriage,  if  originally  celebrated  in  Pennsylvania,  would 
be  void.  Act  1860,  §  39  (P.  L.  393) ;  1  Purd.  Dig.  (ed"  1872),  p.  54. 
Among  the  Jews  in  Russia,  however,  where  the  ceremony  took  place,  it 
has  been  satisfactorily  proved  that  a  marriage  between  uncle  and  niece 
is  lawful,  and,  being  valid  there,  the  general  rule  undoubtedly  is  that 
such  a  marriage  would  be  regarded  everywhere  as  valid.  But  there  is 
this  exception,  at  least,  to  the  rule  :  If  the  relation  thus  enteied  into 
elsewhere,  although  lawful  in  the  foreign  countiy,  is  stigmatized  as  in- 
cestuous b}'  the  law  of  Pennsylvania,  no  rule  of  comity  requires  a  court 
sitting  in  this  State  to  recognize  the  foreign  marriage  as  valid.  I  think 
the  following  quotation  from  Dr.  Reinhold  Schmid,  a  Swiss  jurist  of 
eminence,  to  be  found  in  Whart.  Confl.  Laws  (2d  ed.),  §  175,  correctly 
states  the  proper  rule  upon  this  subject :  — 

"•  When  persons  married  abroad  take  up  their  residence  with  us,  it  is 
agreed  on  all  sides  that  the  marriage,  so  far  as  its  formal  requisites  are 
concerned,  cannot  be  impeached,  if  it  corresponds  either  with  the  laws 
of  the  place  where  the  married  pair  had  their  domicil,  or  with  those 
where  the  marriage  was  celebrated.  But  we  must  not  construe  this  as 
implying  that  the  juridical  validity  of  tlie  marriage  depends  absolutely 
on  the  laws  of  the  place  under  whose  dominion  it  was  constituted  ;  for 
the  fact  that  a  marriage  was  void  by  tlio  hnvs  of  a  prior  domicil  is  no 
reason  why  we  should  declare  it  void  if  it  united  all  the  requisites  of  a 
lawful  marriage  as  they  are  imposed  by  our  laws.  So  far  as  concerns 
the  material  conditions  of  the  contract  of  marriage,  we  must  distinguish 
between  sucli  hindrances  as  would  have  impeded  marriage,  but  cannot 
dissolve  it  when  ah'catly  concluded,  and  such  as  would  actually  dissolve 
a  marriage  if  celebrated  in  the  face  of  them.  A  matrimonial  relation 
that  in  the  last  sense  is  prohibited  !)}•  our  laws  cannot  be  tolerated  in  our 
territory,  though  it  was  entered  into  by  foreigners  before  the}"  visited 
us.  We  will,  therefore,  tolerate  no  polygamous  or  incestuous  unions  of 
foreigners  settling  within  our  limits." 


^ 


SECT.  III.]  BIRTWHISTLE    V.    VAEDILL.  609 

Other  authorit}'  may  be  found  in  State  v.  Brown,  47  Ohio  St.  102, 
23  N.  E.  747,  where  it  is  said,  in  determining  the  effect  of  a  statute 
that  forbade  sexual  intercourse  between  persons  nearer  of  kin  than 
cousins  :  — 

"  We  hold,  therefore,  that  b}'  section  7019,  Rev.  St..  sexual  com- 
merce as  between  persons  nearer  of  kin  than  cousins  is  prohibited, 
whether  the}'  have  gone  through  the  form  of  intermarriage  or  not ;  nor 
is  it  material  that  the  marriage  was  celebrated  in  a  countrj'  where  it 
was  valid,  for  we  are  not  bound,  upon  principles  of  comity,  to  permit 
persons  to  violate  our  criminal  laws,  adopted  in  the  interest  of  decency 
and  good  morals,  and  based  upon  principles  of  sound  public  policy,  be- 
cause they  have  assumed,  in  another  State  or  country,  where  it  was 
lawful,  the  relation  which  led  to  the  acts  prohibited  b}-  our  laws." 

See  also  Inhabitants  of  Medway  v.  Inhabitants  of  Needham,  16 
Mass.  157,  8  Am.  Dec.  131,  and  la  re  Stull's  Estate,  183  Pa.  625, 
39  Atl.  16,  39  L.  R.  A.  539. 

In  view  of  this  exception  to  the  general  rule,  it  seems  to  me  to  be 
Impossible  to  recognize  this  marriage  as  valid  in  Pennsylvania,  since  a 
continuance  of  the  relation  here  would  at  once  expose  the  parties  to 
indictment  in  the  criminal  courts,  and  to  punishment  by  fine  and  im- 
prisonment in  the  penitentiary.  In  other  words,  this  court  would  be 
declaring  the  relation  lawful,  while  the  court  of  quarter  sessions  of 
Philadelphia  County  would  be  obliged  to  declare  it  unlawful.  What- 
ever may  be  the  standard  of  conduct  in  another  country,  the  moral 
sense  of  this  community  would  undoubtedly  be  shocked  at  the  spectacle 
of  an  uncle  and  niece  living  together  as  husband  and  wife  ;  and  I  am, 
of  course,  bound  to  regard  the  standard  that  prevails  here,  and  to  see 
that  such  an  objectionable  example  is  not  presented  to  the  public. 


SECTION   III. 

LEGITIMACY. 


BIRTWHISTLE   v.   VARDILL. 

House  of  Lords.     1840. 

[Reported  7  Clark  &  Finnelly,  895.] 

This  case  came  from  the  King's  Bench  on  Writ  of  Error.  The 
case  was  first  argued  in  the  House  of  Lords  in  1830.  No  judgment 
was  then  given,  but  on  account  of  the  difficulty  and  novelty  of  the  case, 
it  was  ordered  to  be  reargued.^  On  the  first  of  July,  1839,  the  case  was 
reargued  before  Tindal,  C.  J.,  Vaughan,  Bosanquet,  Patteson, 
Williams,  Coleridge,  Coltman,  and  Maule,  JJ.,  and  Parke  and 
GuRNEY,  BB.  A  question  was  framed  and  put  to  the  judges;  and 
their  unanimous  opinion  was  delivered  in  the  following  terms. 


39 


610  BIRTWHISTLE   V.    VARDILL.  [CHAP.    XI. 

TixDAL,  Lord  Chief  Justice.  My  Lords,  the  facts  of  the  case  upon 
which  your  Lordships  propose  a  question  to  Her  Majesty's  judges  are 
these:  ''  A^  went^  from  England  to  Scptlandj__and  resided  and  was 
domiciled  there^and  so  continued  for  many  years,  till  the  time  of  nis 
deiattrr    A.  cohabited  with  M.,  an  unmarried  woman,  during  the  wEoIe 

■"period  of  his  residence  in_8£Qti] and,  and  iiad-by  her  a  son,  B.,  whr> 
wasHborn  in  Scotland^  Several  years  after  the  birth  of  B.,  who  was 
the  only  son,  A.  and  M.  were  married  in^  Scotland,  according  to  the 

"teWB  Of  thai  country.     Byjthe  laws  of  Scotland,  if  the  marriage  of  the 
mo  tire  r  ofaT  cliild  with  the  father  of  such  child  take  place  irj_Scotland, 
siicH  ctiild  born  in^Scotlandnjefore^he  mjrrijige  is  equally  legitimate 
with  children  t7onraft6rttie""mamage,  for  the  purpose  of_taking  land,_ 
ancTfor  every  other  purpose.     A.  died  seised  of  real  estate  in  England, 

'and  intestate.''  And  j'our  Lordships,  uporPEhe  foregoing  state  of 
'facts^  found  lihis  question,  viz.  :  "  Is  B.  entitled  to  such  property  as 
the  heir  of_A-  '•  "  And  in  answer  to  the  question  so  proposed  to  us, 
I  have  the  honor  to  state  to  your  Lordships,  that  it  is  the  opinion 
of  all  the  judges  who  heard  the  argument  that  B.  is  not  entitled  to 
such  property  as  the  heir  of  A.  We  have,  indeed,  reason  to  lament 
that  we  have  been  deprived  of  the  assistance  of  one  of  our  learned 
brethren  who  heard  the  case  argued  at  your  Lordship's  bar,  the  late 
Mr.  Justice  Vaughan  ;  but  as  he  had  expressed  a  concurrent  opinion 
upon  the  case  at  a  meeting  held  immediately  after  the  argument,  I  feel 
myself  justified  in  adding  the  authority  of  his  name  to  that  of  the 
other  judges. 

My  Lords,  the  grounds  and  foundation  upon  which  our  opinion 
rests  are  briefly  these  :  That  we  hold  it  to  be  a^rule  or  maxim  of  the 
1fvwj2£_jiJ5lg^"d^-jd44<--pe«pect-tQ  the  descent  of  land  in  England  from 
father  to  son,  that  the  son  must  bejjorn  after  actual  marriage  between 

*^is  father  _and  mother;  that  this  iS*a  rule  juris  j^ositivi,  as  are  all  tlie 
laws  which  regulate  succession  to  real  property,  this  particular  rule 
having  been  framed  for  the  direct  purpose  of  excluding,  in  the  descent 
of  land  in  England,  the  application  of  the  rule  of  the  civil  and  canon 
law,  by  which  the  subsequent  marriage  between  the  father  and  mother 
was  held  to  make  the  son  born  before  marriage  legitimate  ;  g^id_  that 
this  rule  of  descent  being,a  jule_  ofj^ositive  law  annexed  to  the  land 

Itself,  cannot  be  allowed  to  be  broken  in  upon  or  disturbed  by  the  law 
oTTTie  _c£miitry  jshere   the  -elainiant  was  Jaoxn,   and   which   mav  be 

"allowed  to  govern  hjs  jjersonal  status  as  tQ..i£»itimacy,  upon  the 
su pposed ^grou n<l  of  the  comity  of  nations. 

My  Lords,  to  understand  the  nature  and  force  of  this  rule  of  our 
law,  "  that  the  heir  must  be  a  person  born  in  actual  matrimony  in 
order  to  enable  him  to  take  land  in  England  by  descent,"  and  to  per- 
ceive, at  the  same  time,  the  positive  and  inflexible  qualit}-  of  tliis  rule, 
and  how  closely  it  is  annexed  to  the  land  itself,  it  will  be  necessarv  to 
consider  the  earlier  authorities  in  whicli  that  rule  is  laid  down  and 
discussed,   botli  before  and   subsequently  to  the   statute  of  Merton, 


SECT.  III.]  BIETWHISTLE    V.    VARDILL.  611 

and  more  particularh'  the  legal  construction  and   operation    of  that 
statute.    .   .   . 

At  the  parliament  holden  at  Merton,  in  the  20th  Henry  III.,  the 
statute  was  framed,  which  will  be  found  to  have  a  strong  and  direct 
application  to  the  present  question.  That  statute  has  not  upon  the 
original  roll  the  title  prefixed  thereto,  upon  which  observations  were 
made  at  your  Lordships'  bar,  that  it  showed  the  intention  of  the  law 
to  have  been  no  more  than  to  declare  the  personal  status  of  those  who 
are  described  in  such  statute.  In  the  edition  of  the  statutes  published 
under  the  commission  from  the  Crown,  there  is  no  other  than  the 
general  title  "  Provisiones  de  Merton;"  and  no  more  argument  can 
justly  be  built  upon  the  title  prefixed  in  some  editions  of  the  statutes, 
than  upon  the  marginal  notes  against  its  different  sections.  That 
statute  or  provision  of  Merton  runs  thus,  viz.  :  "To  the  King's  writ 
of  bastard}',  whether  an}'  one  being  born  before  matrimony  mav 
inherit  in  lilce  manner  as  he  that  is  born  after  matrimony,  all  the 
bishops  answered  that  the\'  would  not  nor  could  not  make  answer  to 
that  writ,  because  it  was  directly  against  the  common  order  of  the 
church,  and  all  the  bishops  instanted  the  lords  that  the}'  would  consent 
that  all  such  as  were  born  afore  matrimony  should  be  legitimate, 
as  well  as  they  that  be  born  within  matrimony,  as  to  the  succession 
to  inheritance,  forasmuch  as  the  church  accepteth  such  as  legitimate. 
And  all  the  earls  and  barons,  with  one  voice,  answered  that  they 
would  not  change  the  laws  of  the  realm  which  hitherto  had  been  used 
and  approved."  .  .   . 

It  therefore  appears  to  be  the  just  conclusion  from  these  premises, 
thaTthe  rule  of  descent  to  English  land  is,  that  the  heir  must  be  bora_^ 
'  afteFactiiar marriage  of  his  father  and  mother,  in  order  to  enable  him 
-^toTtTirenl. ;  and  that  TlTis~rs^ a^mte'  of  ^jDOSitTve  Th flexi bl e^'na t ur^ 
applying  to,  Ivnd  inherent  in,  the  land  itself,  which  is  the  subject  of 
descent,  of  the  same  nature  and  character  as  thaT  ruTe^which  prohibited 
tlie  descent  ot~ land  to  aiiy  b;it  those  wbo  were  of  the  whole  bjood  tq 
the  last  taker,  or  like  the  custom  of  gavelkind  or  borough-English, 
which  cause"the'Tand  to  descend,  m  the  one  case,  to  all  the__son3 
togetSer  r  in  the  other,  to  the  younger  son  alone. 

And  if  such  be,  as  it  appears  to  us  to  be,  the  rule  of  law  which 
governs  the  descent  of  land  in  England,  without  any  exception,  either 
express  or  implied  therein,  on  the  score  of  the  place  of  birth  of  the 
claimant,  it  remains  to  be  considered  whether,  by  any  doctrine^  (jt 
internationaTlaw,^  oj:  byJJifi_.CGimJx  pJ^^rttonsTT^  rule  is  to  be  letjn 
by  wliif^h  R.,  being  Jield-4o-^be4eg4timate  in  liis  own  country  for  all_ 
purposes,  must  be  considered  as  the  heir-at-law  in  England. 
"^  The  broad  propositidir"conten:ited  for  on  the  part  of  the  plaintiff 
in  error  is,  that  legitimacy  is  a  personal  status  to  be  determined  by  tlie 
law"bf  tbe  country  which  gives  the  party  birth;  and  that,  when  the 
-la^r-ofTHaL  country  has  once  pronounced  him  to  be  legitimate,  he  is, 
by  the  comity^  oL  ipternatioaal  law,  to  be  considered  as  legitimate  in 


612  BIRTWHISTLE    V.    VARDILL.  [cHAP.  XI. 

ever}*  other  country  also,  and  for  ever}'  purpose  ;  and  it  is  then  con- 
tended that,  as  by  the  Scotch  law  there  is  a  presumptio  juris  et  dejure, 
that,  under  the  circumstances  supposed,  the  parents  of  B.  were  actually 
married  to  each  other  before  the  birth  of  B.,  such  presumption  of  the 
Scotch  law,  b\-  which  his  legitimacy  is  effected,  must  also  be  adopted 
and  received  to  the  same  extent  in  the  English  as  in  the  Scotch  courts 
of  justice. 

Now,  there  can  be  no  doubt  but  that  marriage,  which  is  a  personal 
contract,  when  entered  into  according  to  the  rites  of  the  country  where 
the  parties  are  domiciled  and  the  marriage  celebrated,  would  be  con- 
sidered and  treated  as  a  perfect  and  complete  marriage  throughout  the 
whole  of  Christendom. 

But  it  does  not  therefore  follow,  that,  with  the  adoption  of  the 
marriage  contract,  the  foreign  law  adopts  also  all  the  conclusions  and 
consequences  which  hold  good  in  the  countrj-  where  the  marriage  was 
celebrated.  That  the  marriage  in  question  was  not  celebrated  in  fact 
until  after  the  birth  of  B.  is  to  be  assumed  from  the  form  of  the 
question.  Indeed,  except  on  that  supposition,  there  would  be  no 
question  at  all.  Does  it  follow,  then,  that  because  the  Scotch  hold 
a  marriage  celebrated  between  the  parents  after  the  birth  of  a  child  to 
be  conclusive  proof  of  an  actual  marriage  before,  a  foreign  country, 
which  adopts  the  marriage  as  complete  and  binding  as  a  contract  of 
marriage,  must  also  adopt  this  consequence?  No  authorit}'  has  been 
cited  from  any  jurist  or  writer  on  the  subject  of  the  law  of  nations  to 
that  effect,  —  nothing  beyond  the  general  proposition  that  a  party 
legitimate  in  one  country  is  to  be  held  legitimate  all  over  the  world. 
Indeed,  the  ground  upon  which  this  conclusion  of  B.'s  legitimacy  is 
made  by  the  Scotch  law,  is  not  stated  to  us,  and  we  have  no  right  to 
assume  an}'  fact  not  contained  in  the  question  which  your  Lordships 
have  proposed  to  us.  We  may,  however,  observe  that,  in  the  course 
of  the  argument  at  j'our  Lordships'  bar,  the  ground  has  been  variously 
stated,  upon  which  the  laws  of  different  -countries  have  arrived  at  the 
same  conclusion.  It  was  asserted  that,  by  the  law  of  Scotland,  the 
subsequent  marriage  is  not  to  be  taken  to  be  the  marriage  itself,  but 
only  evidence,  though  conclusive  in  its  nature,  of  the  marriage  prior  to 
the  birth  of  B.  ;  that  the  canon  law  rests  the  legitimacy  of  the  son 
born  before  such  marriage  upon  a  ground  totally  different,  viz.,  that 
having  been  liorn  illegitimate,  he  is  made  legitimate,  legitimatus,  by 
the  subsequent  marriage,  by  a  positive  rule  of  law,  on  account  of  the 
repentance  of  his  parents  ;  whereas,  by  the  Scotch  law,  a  marriage 
previous  to  his  birth  is  conclusively  presumed,  so  that  he  always  was 
legitimate,  and  his  parents  had  nothing  to  repent  of.  Pothicr,  on  the 
other  hand  (Contrat  de  Marr.,  part.  v.  ch.  2,  art.  2),  when  lie  speaks 
of  the  effect  of  a  subsequent  marriage,  in  legitimating  children  born 
before  it,  disclaims  the  authorit}'  of  the  canon  law,  nor  does  he  mention 
any  fiction  of  an  antecedent  marriage,  but  rests  the  effect  upon  the 
positive  law  of  the  countr}'.     He  first  instances  the  custom  of  Troyes, 


SECT. 


III.J 


BIETWHISTLE    V.    VARDILL. 


613 


*'  Les  enfans  n^s  hors  mariage  De  Soluto  et  Soluta  puis  que  le  pere 
et  la  mere  s'epousent  I'un  I'autre,  succedent  et  viennent  k  partage 
avec  les  autres  enfans  si  ancuns  y'  a  ;  "  and  tlien  adds,  "  tliat  it  is  a 
common  right  received  throughout  the  whole  kingdom." 

Now  it  could  never  be  contended  by  any  jurist,  that  the  law  of 
England  in  respect  to  the  succession  of  land  in  England,  would  be 
bound  to  adopt  a  positive  law  of  succession  like  that  which  holds  in 
France,  the  distinction  being  so  well  known  between  laws  that  relate 
to  personal  status  and  personal  contracts,  and  those  which  relate  to 
real  and  immovable  property  ;  for  which  it  is  unnecessary  to  make 
reference  to  any  other  authority  than  that  of  Dr.  Story,  in  his  admir- 
able Commentaries  on  the  Conflict  of  Laws.  (See  sections  430  and 
following,  where  all  the  authorities  are  brought  together).  And  if 
such  positive  law  is  not  upon  any  principle  to  be  introduced  to  control 
the  English  law  of  descent,  what  ground  is  there  for  the  introduction 
into  the  English  law  of  descents,  not  only  of  the  contract  of  marriage 
observed  in  another  countr}',  which  is  admitted  to  be  adopted,  but 
also  of  a  fiction  with  respect  to  the  time  of  the  marriage?  that  is,  in 
effect,  of  a  rule  of  evidence  which  the  foreign  country  thinks  it  right 
to  hold. 

But  admitting,  for  the  sake  of  argument,  and  we  are  not  called 
upon  to  give  our  opinion  on  that  point,  that  B.,  legitimate  in  Scotland, 
is  to  be  taken  to  be  legitimate  all  over  the  world  ;  the  question  still 
recurs,  whether,  for  the  purpose  of  constituting  an  heir  to  land  in 
England,  something  more  is  not  necessary  to  be  proved  on  his  part 
than  such  legitimacy ;  and  if  we  are  right  in  the  grounds  on  whicli 
we  have  rested  the  first  point,  one  other  step  is  necessar}',  namely,  to 
prove  that  he  was  born  after  an  actual  marriage  between  his  parents  ; 
and  if  this  be  so,  then,  upon  the  distinction  admitted  by  all  the 
writers  on  international  law,  the  lex  loci  rei  sitce  must  prevail,  not  the 
law  of  the  place  of  birth. 

My  Lords,  in  the  course  of  the  discussion,  some  stress  appears  to 
have  been  placed  on  the  argument,  that  if  B.  had  died  before  A.  the 
intestate,  leaving  a  child,  such  child  might  have  inherited  to  A., 
tracing  through  his  legitimate  parent ;  and  then  it  was  asked  if  the 
child  might  inherit,  wliy  might  not  the  parent  himself  inherit?  But 
the  answer  to  that  supposed  case  appears  to  be,  that  if  the  parent  be 
not  capable  of  inheriting  himself,  he  has  no  heritable  blood  which  he 
can  transmit  to  his  child ;  so  that  the  child  could  not,  under  the 
assumed  facts,  have  inherited,  and  the  question  therefore  becomes, 
in  truth,  the  same  with  that  before  us.  The  case  supposed  would 
be  governed  by  the  old  acknowledged  rule  of  descent:  "Qui  doit 
inheriter   al   pere,    doit   inheriter   al    fitz." 

My  Lords,  the  two  decided  cases  that  have  been  relied  upon  in  the 
course  of  argument,  that  of  Shedden  v.  Patrick,  and  that  of  the  Strath- 
more  Peerage,  do  not,  upon  consideration,  create  any  real  difficulty. 
Those  cases  decide  no  more  than  that  no  one  can  inherit  without  bav- 


■J 


/ 


./- 


t 


y 


614  IN    RE    ANDROS.  [CHAP.  XI. 

ing  the  personal  status  of  legitimacy,  —  a  point  upon  which  all  agree  ; 
but  the}-  are  of  no  force  to  establish  the  main  point  in  dispute  in  this 
case,  viz.,  that  such  personal  status  is  sufficient  of  itself  to  enable  the 
claimant  to  succeed  as  heir  to  land  in  England. 

Upon  the  whole,  in  reporting  to  your  Lordships  as  the  opinion  of  the 
judges,  "  that  B.  is  not  entitled  to  the  real  property  as  the  heir  of  A.,'* 
I  am  bound  at  the  same  time  to  state,  that  although  they  agree  in  the 
result,  they  are  not  to  be  considered  as  responsible  for  all  the  grounds 
and  reasons  on  which  I  have  endeavored  to  support  and  to  explain 
such  opinion. 

Lord  CoTTENHAM,  Lord  Chancellor.  My  Lords,  I  was  not  in 
your  Lordships'  house  when  this  case  was  first  argued ;  but  I  was 
present  at  the  argument  when  the  learned  judges  were  in  attendance, 
and  I  gave  my  attention  to  the  opinion  expressed  bj'  the  Lord  Chief 
Justice,  and  I  entirely  concur  in  that  opinion.  I  am  extremely 
satisfied  with  the  ground  upon  which  the  judges  put  it,  because  they 
put  the  question  on  a  ground  which  avoids  the  difficulty  that  seems  to 
surround  the  task  of  interfering  with  those  general  principles  peculiar 
to  the  law  of  England,  principles  that  at  first  sight  seem  to  be  some- 
w^hat  at  variance  with  the  decisions  to  which  the  courts  have  come. 
Under  these  circumstances,  as  my  noble  and  learned  friend  does  not 
move  the  judgment,  I  move  judgment  for  the  defendant  in  error. 

Judgment  accordingly} 


In  Ee  ANDROS. 

Chancery  Division.     1883. 
[Reported  24  Chancery  Division,  637.] 

William  Andros,  who  died  in  January,  1882,  by  his  will  dated  in 
August,  1879,  gave  {inter  alia)  one-third  part  of  his  personal  estate 
to  trustees  ''  upon  trust  to  pay  and  divide  the  same  equally  between 
such  of  his  great  nephews,  the  sous  of  his  deceased  nephew  Thomas 

1  Ace.  Fenton  v.  Livingston,  3  Macq.  497  ;  Lingen  v.  Lingen,  45  Ala.  410  ;  "Williams 
r.  Kimball,  35  Fla.  49,  16  So.  783  ;  Smith  v.  Uerr,  34  Pa.  167.  Conversely  land  was 
held  to  descend  to  persons  described  as  heirs  in  the  local  statutes,  though  the}'  were 
not  legitimate  bv  the  law  governing  their  status.  Harvey  v.  Ball,  32  Ind.  98  ;  Estate 
of  Oliver,  184  Pa.  306,  39  Atl.  72.     See  Leonard  v.  Braswell,  99  Ky.  528. 

It  has,  however,  been  held  in  other  States,  under  the  statutes  of  inheritance  there 
in  force,  that  one  having  a  legitimate  status  (though  illegitimate  at  birth)  may  in- 
herit land.  Scott  v.  Key,  11  La.  Ann.  232;  Ross  v.  Ross,  129  Mass.  243  (scmble)  ; 
Miller  V.  Miller,  91  N.  Y.  315.  So,  conversely,  that  one  illegitimate  by  the  law 
governing  his  status  cannot  inherit,  though  by  the  law  of  the  situs  he  would  be 
legitimate,  Smith  v.  Kelly,  23  Miss.  167.  —  Ed. 


SECT.  III.]  W    EE    ANDROS.  615 

Godfrey  Andros,"  as  should  survive  him  and  attain  the  age  of  twent}-- 
five  years,  in  equal  shares  ;  but  he  gave  his  said  trustees  absolute 
discretion  to  pay  to  his  said  great  nephews,  or  either  of  them,  the 
whole  or  an}'  portion  of  the  capital  of  the  shares  or  share  to  which 
the}'  or  he  might  be  presumptively  entitled  at  any  time  or  times  his 
said  trustees  might  consider  it  expedient  to  do  so. 

Thomas  Godfrey  Andros  was  a  native  of  Guernsey,  and  by  the  laws 
of  tliat  island  a  child  born  before  the  marriage  of  his  parents  becomes 
legitimate  upon  their  subsequent  marriage  as  fully  as  if  he  had  been 
born  in  wedlock. 

The  plaintiff  was  the  son  of  T.  G.  Andros,  and  he  was  born  in 
Guernse}'  in  December,  1860.  In  January,  I860,  T.  G.  Andros  mar- 
ried in  Guernse}'  the  plaintiff's  mother,  he  had  four  children  after  the 
naarriage,  and  he  died  domiciled  in  Guernse}^  on  the  12th  of  Novem- 
ber, 1875.  The  plaintiff  had  attained  twent^'-one,  and  the  trustees  of 
the  will  being  ready  to  pay  him  his  due  share  of  the  one-third  of  the 
testator's  residuar}"  personal  estate  if  they  could  lawfully  do  so,  the 
question  submitted  for  the  opinion  of  the  court  was  whether  the  plain- 
tiff ought  to  be  deemed  to  be  a  legitimate  son  of  Thomas  Godfrey 
Andros,  and  as  such  entitled  to  share  with  his  children  born  after 
wedlock  in  the  testator's   bequest. 

Kay,  J.  This  will  being  an  English  will  must  of  course  be  construe^ 
according  to  Ejiajjsh  law^  That  l_aw  requires  that  all  wbotakp  iind*^''  "^ 
gift  to  sons  of  a  named  fathershould  be  legitimate  oflfsprin^.  It  must 
now  be  treated  as  settled  thatanv  person  legitimate  according  totHe" 
law^oTThe  diaFTr'tl"TTp~tTts'£.nTlixir  nr,  hws,^mrTii  is  IpqIiIiiimIh  in  Hiyiv4.irr-4». 
"witliiiTthe  range  of  international  law  for  tKe^prrrptTstrTTf^llDSeedlE^To^ 
perSOUill  piupuily: '  ~~- ^-"-""''^^ 

I'he"  well-knOwn  case  of  Doe  v.  Vardill,  7  CI.  &  F.  895  ;  6  Bing. 
N.  C.  385  ;  9  Bl.  (n.  s.)  32,  which  introduced  a  distinction  in  tliis 
respect  in  the  case  of  a  person  claiming  to  succeed  as  heir  to  real 
propert}'  in  England  bv  requiring  sucli  a  person  to  establish  his 
legitimac}'  according  to  Englisli  law  —  that  is,  as  though  the  father 
had  been  domiciled  in  England  at  the  time  of  the  birth  of  the  child  — 
treats  this  as  an  exceptional  case  and  recognizes  that  the  rule  of 
succession  to  personal  estate  is  otherwise,  and  this  has  been  recentl}^ 
more  expressly  decided  by  the  Court  of  Appeal  in  la  re  Goodman's 
Trusts,  17  Ch.  D.  266.^ 

If,  then,  a  child  of  a  foreigner  legitimate  according  to  the  law  of 
his  father's  domicil,  though  illegitimate  if  his  father  had  been  a  domi- 
ciled Englishman,  can  succeed  as  next  of  kin  to  personal  estate  in 
England,  why  should  he  not  take  a  bequest  of  personalty  by  the 
description  of  the  son  of  his  father  in  the  will  of  an  English  testator? 
On  principle  it  seems  to  me  ver}'  difficult  to  sa}'  why  he  should  not. 

However,  in  Boyes  v.  Bedale,  1  H.  &  M.  798,  the  late  Lord  Hather- 
lej  in  a  considered  judgment  decided  that  such  a  person  could  not  take 
1  Contra  LiLgeii  v.  Linden,  45  Ala.  410.  — Ed. 


616  IN    KE    ANDROS.  [CHAP.  XI. 

under  a  gift  to  the  children  of  his  father.  The  will  and  ever}'  term 
in  it,  his  Lordship  held,  must  be  construed  according  to  English  law. 
If  in  a  Canadian  will  there  were  a  gift  of  £100,  that  would  mean 
£100  Canadian  currency  not  £100  sterling.  So  the  testator  "  must 
be  taken  to  mean  a  child  in  the  sense  in  which  the  law  of  England 
understands  the  term." 

Speaking  with  all  deference,  the  illustration  seems  to  me  inapt  and 
wanting  in  analogy.  If  two  countries  happen  to  have  the  same  name 
for  their  monetary  currency  no  one  for  a  moment  could  suppose  that 
a  testator  in  one  of  these  using  the  familiar  name  of  the  currency 
of  his  own  country  meant  by  that  the  currency  of  different  value  of 
the  foreign  country  which  happened  to  have  the  same  name  ;  but  how 
does  it  follow  from  this  that  a  gift  to  the  children  of  a  foreigner  means 
such  children  only  as  would  be  legitimate  if  he  had  been  a  domiciled 
Englishman?  A  bequest  in  an  English  will  to  the  children  of  A.  means 
to  his  legitimate  children,  but  the  rule  of  construction  goes  no  further. 
The  question  remains  Who  are  his  legitimate  children?  That  certainly 
is  not  a  question  of  construction  of  the  will.  It  is  a  question  of  status. 
By  what  law  is  that  status  to  be  determined?  That  is  a  question  of 
law.  Does  that  comity  of  nations  which  we  call  international  law 
apply  to  tlie  case  or  not?  That  may  be  a  matter  for  consideration, 
but  I  do  not  see  how  the  construction  of  the  will  has  anything  to  do 
with  it.  The  matter  may  be  put  in  another  way.  What  did  the 
testator  intend  by  this  gift?  That  is  answered  by  the  rule  of  construc- 
tion. He  intended  A's  legitimate  children.  If  you  ask  the  further 
question.  Did  he  intend  his  children  who  would  be  legitimate  accord- 
ing to  Enghsh  law  or  his  actual  legitimate  children?  How  can  the 
rule  of  construction  answer  that? 

Lord  Hatherly  considered  that  the  bequest  must  be  read  to  such 
children  as  would  be  legitimate  according  to  the  law  of  England  if 
their  father  had  been  a  domiciled  Englishman  at  their  birth.  But 
is  that  according  to  the  English  rule  of  construction  that  children 
means  legitimate  children?  Try  it  thus.  Suppose  the  same  rule  of 
construction  to  prevail  in  Guernsey,  and  that  in  the  will  of  a  Guernsey 
testator  there  were  a  bequest  to  the  cliildren  of  an  Englishman. 
According  to  Boyes  i.  Bedale,  1  H.  &  jNI.  798,  children  would  mean 
such  children  as  would  be  legitimate  according  to  the  law  of  Guernsey. 
By  this  construction  coite  iiafi  of  tlie  English  father  would  share  with 
his  children  legitimate  according  to  English  law,  because  they  would 
have  been  legitimate  if  the  father  had  been  domiciled  in  Guernse}', 
though  they  were  in  fact  illegitimate  by  English,  and,  of  course,  by 
international  law. 

This  would  not  carry  out,  but  contravene,  the  rule  of  construction. 

Vice-Chancellor  Kindersley,  in  In  )r  AVilson's  Trusts,  Law  Rep.  1  Eq, 
247,  expressed  his  readiness  to  follow  Boyes  r.  Bedale.  The  facts 
of  that  case,  however,  wore  not  the  same.  A  domiciled  Englishman 
had  married  an    Englishwoman.     Pie  went  to  Scotland,    and  without 


SECT.  III.]  IX    RE   ANDROS.  617 

having  a  Scotch  domicil  he  sued  for  and  obtained  a  Scotch  divorce, 
which  was  not  sufficient  to  dissolve  the  English  marriage.  The 
woman  then  married  in  Scotland  a  domiciled  Scotchman,  and  had 
children  by  him,  and  the  question  was  whether  the}-  could  be  con- 
sidered legitimate  in  England.  The  decision  of  Vice-Chancellor  Kind- 
ersle}-  was  supported  in  the  House  of  Lords  (Shaw  v.  Gould,  Law 
Eep.  3  H.  L.  55)  on  the  ground  that  international  law  did  not  require 
the  English  courts  to  recognize  such  a  divorce,  and  therefore  the 
children  were  not  by  that  law  legitimate. 

That  decision  does  not  apply,  because  it  cannot  be  denied  that  the 
children  in  this  case  would  be  recognized  as  legitimate,  for  some 
purposes  at  any  rate,  by  every  other  State  in  Christendom. 

These  are  the  two  cases  most  nearly  in  point  on  the  one  side.  On 
the  other  there  are  two  decisions  of  Vice-Chancellor  Stuart,  Goodman 
V.  Goodman,  3  Giff.  643,  and  Skottowe  v.  Young,  Law  Rep.  11  Eq. 
474.  The  late  Master  of  the  Rolls  observes  of  the  former  that  the 
point  was  not  there  really  considered  and  decided.  See  In  re  Good- 
man's Trusts,  14  Ch.  D.  619.  But  according  to  the  report  it  certainly 
was  argued,  and  the  decision  was  that  ante  nati  born  in  England 
while  the  father  was  domiciled  here  could  not  take  under  a  gift  to 
children,  but  that  an  a7ite  7iatus  born  in  Holland  when  the  father  was 
domiciled  there  might  take  in  conjunction  with  the  post  nati  b}^  the 
same  mother  whom  he  married  in  that  country,  thus  legitimatizing  the 
a?ite  natus  there.  Skottowe  v.  Young  was  a  question  of  legacy 
duty,  but  the  same  point  was  involved. 

Besides  these  two  cases  there  is  the  analog}'  which  I  have  referred 
to  derivable  from  the  decisions,  showing  that  a  child  legitimate  by  the 
law  of  his  father's  domicil  may  take  as  next  of  kin  in  a  succession  to 
personal  estate  in  England. 

But  in  addition  to  these  considerations  there  is  the  opinion  of  Lords 
Justices  Cotton  and  James  in  the  case  of  In  re  Goodman's  Trusts, 
17  Ch.  D.  266.     The  former  says.  Ibid.  295  :  — 

"  In  Boyes  v.  Bedale,  1  H.  «&;  M.  798,  the  question  was  on  the  con- 
struction of  a  bequest  in  the  will  of  a  domiciled  Englishman  to  the 
children  of  a  person  named.  The  Vice-Chancellor  held  that  a  child 
exactly  in  the  same  position  as  Hannah  Pieret  was  not  entitled  under 
the  bequest.  He  said  that  the  will,  being  that  of  a  domiciled  English- 
man, must  be  construed  according  to  English  law,  which,  in  my  opinion, 
is  correct  so  far  as  to  require  that  this  word  '  children '  shall  be  con- 
strued 'legitimate  children.'  But  he  held  that  English  law  recognized 
as  legitimate  only  those  children  born  in  wedlock.  This,  though 
correct  as  regards  the  children  of  persons  domiciled  in  England  at  the 
time  of  their  birth,  is,  in  my  opinion,  erroneous  as  to  children  born 
of  parents  who  at  the  time  of  the  birth  were  domiciled  in  a  country  by 
the  law  of  which  the  children  were  legitimate." 

Lord  Justice  James  says,  17  Ch.  D.  299:  "  The  decision  in  Boyes 
V.  Bedale  was  on  the  ground  that,  in  an  Englishman's  will,  the  children 


618 


VAN    MATRE   V.    SANKEY. 


[chap.  XL 


of  a  nephew  must  mean  children  who  would  be  lawful  children  if  they 
were  English  children.  That  seems  to  me  a  violent  presumption.  It 
was  an  accident  in  that  case  that  the  testator  was  an  Englishman. 
But  supposing  it  had  been  the  will  of  a  Frenchman,  dying  domiciled 
in  England,  and  made  in  favor  of  his  French  relations  and  their 
children,  or  of  liis  own  children,  there  being  children  legitimate  and 
legitimated,  what  would  have  been  said  of  such  a  presumption  and 
such  a  construction?" 

Tiie  decision  in  In  re  Goodman's  Trusts,  17  Ch.  D.  266,  overruled 
the  late  Master  of  the  Rolls,  and  was  dissented  from  by  Lord  Justice 
Lush. 

This  conflict  of  authority  leaves  me  free  to  decide  this  case  accord- 
ing to  my  own  opinion,  which  is  in  favor  of  the  plaintiffs  claim. 

I  observe  that  the  testator  describes  the  objects  of  his  bounty  not 
merely  as  the  sons  of  his  deceased  nephew  Thomas  Godfrey  Andros, 
but  also  as  his  own  great  nephews  ;  but  that,  in  my  opinion,  makes 
no  difference.  The  law_of  this  countryjb^the  comity  of  nations 
recognizes  the  plamtiff  aslegitimate,  and  therefore  he  is  as  miioh  the 
lawful  neT)hew^t,lio  testator  as  he  is  the  lawful  son  of  J.  G.  Andros. 

The  law,  as  I  understand  it,  is  that  a  bequest  of  personalty  in  an 
English  will  to  the  children  of  a  foreigner  means  to  his  legitimate 
cnndren^_and_lbaliJby  interaaJii^nal_Jaw^_as_recognized  in  tMs  countLU. 
those  children  are  legitimate  whose  legitimacy  is  established  by  the 
law  of  the  father's  domicil.  Thus  mUe  nati  whose  fnther  was  domi- 
cUecrTnlGn^rasev  aLtheir  birthTand  subsegufp^ly  niaP'''^^  ^h^  rnot.hdr 
so  n9^U2_mf^kp^J}^p^  JJMte  ouiti  Ipgitimflte  by  the  law  of  Gucrnspyr  ^'^'^^ 
"recognized  as  legitimp^^  by  thp  law  of  this  country,  and  can  take 
under  such  a  gift.^ 


VAN  MATRE   v.   SANKEY. 
Supreme  Court  of  Illinois.     1893. 

[Reported  148  Illinois,  53(5.] 

Mary  F.  Van  Matre  filed  her  bill  in  chancery  in  the  Cook  County 
Circuit  Court,  alleging  that  she  and  others  named  in  the  bill,  including 
Caroline  C.  Sankey,  were  the  heirs-at-law  of  Samuel  Sankey,  who  died 
intestate  in  November,  1886,  without  issue  or  widow  surviving  him, 
and  seized  of  certain  lots  and  lands  in  said  county,  of  which  partition 
was  sought  among  said  collateral  heirs  of  said  decedent.  The  bill  also 
set  up  that  appellant  Henry  L.  Glos  and  others  claimed  some  interest 
in  certain  of  the  lands  under  tax  deeds  which  were  alleged  to  be  void, 
and  were  asked  to  be  removed  as  clouds  upon  the  title  of  complainant 
and  her  co-heirs. 

Caroline  C.  Sankey  answered  the  bill,  denying  tliat  others  were  inter- 
1  Ace.  In  re  Grey's  Trusts,  [1892]  3  Ch.  88.  —  Ed. 


SECT.  III.]  VAN   MATEE   V.   SANKEY.  619 

ested  in  said  land  and  lots,  and  claiming  title  in  fee  to  the  whole,  as 
heir-at-law  of  the  said  Sanke}',  and  filed  her  cross-bill,  alleging  that  by 
virtue  of  certain  adoption  proceedings  in  the  court  of  common  pleas  of 
Lycoming  County,  Pennsylvania,  she  was  ndnpt.pd  by  'imVI  Simnnl -» 
Sankev.  deceased,  on  the  2d  day  of  Januar}',  1879,  and  that  said 
Sankey  having  died  without  issue,  and  leaving  no  widow  him  surviving, 
his  estate  descended  to  her  as  heir-at  lj,w^  The  cross- bill  also  allegec? 
tEaTsaid  GIos  and  others  held  certain  tax  deeds  which  were  a  cloud 
upon  her  title,  and  alleging  in  the  cross-bill,  as  amended,  certain  de- 
fects therein,  and  praying  that  the  same  be  removed  as  a  cloud,  etc. 

Upon  the  issues  joined  upon  the  original  and  cross-bills,  the  court 
found  and  decreed  in  accordance  with  the  praj-er  of  the  cross-bill ;  dis- 
missing the  original  bill ;  finding  that  the  tax  deeds  alleged  were  void, 
and  upon  the  terms  of  payment  b}-  complainant  in  the  cross-bill,  of  the 
taxes  for  which  the  tracts  were  severally'  sold,  interest  and  costs,  etc., 
removing  them,  severally,  as  clouds,  etc.  From  the  decree  dismissing 
the  original  bill  and  quieting  the  title  in  the  complainant  in  the  cross- 
bill, Mary  F.  Van  Matre  appeals,  and  from  so  much  of  the  decree  as 
finds  the  several  tax  deeds  void  and  clouds,  etc.,  the  said  Henry  L. 
Glos  appeals.^ 

Shope,  J.  It  is  insisted  that  the  decree  of  adoption,  although  valid 
in  the  State  of  the  domicil  of  the  child,  and,  2)ro  tempore,  of  the  person 
adopting  her,  cannot  affect  the  descent  of  real  property  in  Illinois,  and 
McCartney  v.  Osburn,  118  111.  403,  is  cited  as  supporting  that  conten- 
tion. This  is  a  misapprehension  of  the  case  cited,  as  well  as  of  the 
effect  of  the  decree  of  adoption.  In  the  Osburn  Case  the  courts  of 
Pennsylvania  had  given  construction  to  clauses  of  a  will  as  affecting 
property  situated  in  that  State,  and  the  question  was,  whether  the  par- 
ties were  estopped,  by  the  construction  there  given,  in  proceedings  in 
this  State  affecting  real  property  in  this  State.  It  was  held  that  they 
were  not,  and  that  the  courts  of  each  State  must  construe  the  will,  as 
affecting  lands  within  their  respective  jurisdictions,  for  themselves,  and 
might  do  so  as  if  the  several  properties  were  devised  by  separate  wills, 
^e  real  property  passed  under  the  law  of  its  situs,  and  not  by  the  law_ 
oT^iti  dumicil  of  the  testator,  aMtEerefore'the  will  must  be  constrjiecj^^ 
under  the  laws  of  this  State,  and  that  construction  control  its  disposi- 


tion.  That  case  was  expressl}^  distinguished  from  Hannartr1Kea37l02 
111.  596,  and  like  cases,  in  which  it  is  held  that  the  right  to  re-litigate 
is  concluded  by  the  former  adjudication. 

The  proceeding  in  this  case  was  in  the  nature  of  a  proceeding  in 
rem,  the  purpose  being  to  change  the  status  of  the  child  in  her  relation 
to  said  Samuel  Sankey.  The  decree  of  adoption  was  a  declaration  by 
competent  authority,  operative  to  change  her  status,  and,  ipso  facto,  to 
render  her  that  which  she  was  declared  to  be,  —  the  heir-at-law  of 
Samuel  Sankey,  —  and  capable  of  inheriting  from  him,  in  all  respects, 
as  if  she  had  been  his  child  born  in  lawful  wedlock.  2  Black  on 
1  Part  of  the  statement  of  facts  and  part  of  the  opinion  are  omitted.  —  Ed. 


520  VAN   MATRE   V.   SANKEY.  [CHAP.  XL 

Judgments,  792,  et  seq.  The  statute  under  which  the  adoption  pro- 
ceedings were  had,  provides  that  the  child  shall  be  decreed  to  take  the 
name  of  the  adopting  parents,  ''  and  have  all  the  rights  of  a  child  and 
heir  of  such  adopting  parents,  and  be  subject  to  the  duties  of  such 
child."  The  decree,  by  force  of  this  statute,  established,  eo  instanti 
its  rendition,  the  relation  of  parent  and  child,  imposed  upon  the  parties 
the  reciprocal  duties  and  obligations  of  that  relation,  and  impressed 
upon  and  invested  the  child  with  the  rights  and  qualities  of  a  child 
and  heir-at-law  of  Samuel  Sankey.  This  we  understand  to  be  the 
construction  of  the  statute  by  the  courts  of  that  State.  Wolf's  Appeal 
(Pa.)  13  Atl.  760.  The^ status_of_aj>pellee  havingjjeen  pstnhlishpd  nn- 
(jer  and  existing  by  virtue  of  jbe  lex  dnmiriUi.  is  to  be  rP(^o<yni/ed  and 
upheld  in  even-  other  State,  unless,  such  status,  or  the^jights  flowing 
therefrom,  are  inconsistent  with  or  opposed  to  the  laws  and  policy  of 
the  State  where  itj3_joughLtoj2fi_availcd  of: 

This  court,TirKeegan  v.  Geraghty,  101  III.  26,  quoted  with  approval 
the  language  of  Mr.  Justice  Gray  in  Ross  v.  Ross,  129  Mass.  243,  as 
follows:  "It  is  a  general  principle  that  the  status  or  condition  of  a 
person,  the  relation  in  which  he  stands  to  another  person,  and  by 
which  he  is  qualified  or  made  capable  to  take  certain  rights  in  that 
other's  property,  is  fixed  by  the  law  of  the  domicil,  and  this  status  and 
capacity  are  to  be  recognized  and  upheld  in  every  other  State,  so  far 
as  they  are  not  inconsistent  with  its  own  laws  and  policy,"  and  the 
principle  announced,  with  its  limitation,  was  expressly  approved. 
Roth  V.  Roth,  104  111.  348.  In  the  Keegan  Case,  suimi,  the  child, 
adopted  under  the  laws  of  Wisconsin,  sought  in  this  State  to  take,  not 
from  the  adopting  parent,  but  from  collaterals  and  by  representation. 
This  court  expressly  recognized  the  status  established  in  Wisconsin,  so 
far  as  it  related  to  the  right  to  inherit  from  the  parent  by  adoption, 
because  consistent  with  the  laws  of  this  State  relating  to  descent  to 
adopted  children,  but  denied  the  right  to  take  by  representation  from 
collateral  kindred  of  the  parent,  for  the  reason  that  such  taking  was 
prohibited  by  and  inconsistent  with  the  laws  of  this  State.  Rev.  Stat, 
sect.  1,  par.  5,  chap.  39.  No  inconsistency  with  our  laws  or  their 
policy  exists  in  this  case.  The  rights  claimed  under  and  by  virtue  of 
the  adoption  in  Pennsylvania  are  tliose,  and  none  other,  that  would 
exist  upon  the  creation  of  the  same  artificial  relation  in  this  State. 

We  are  of  opinion,  therefore,  that  upon  the  death  of  Samuel  Sankey 
without  other  children,  the  estate  in  Illinois  descended  to  appellee, 
Caroline  C.  Sankey,  as  his  child  and  heir-at-law,  and  that  the  court 
correctly  decreed  in  dismissing  the  original  bill. 

Decree  affirmed} 

1  Ace.  Grav  v.  Holmes,  .^)7  Kan.  217,  45  Pac.  ^^f>  \  Ross  v.  Ross,  120  Mass.  243  ; 
Melvin  v.  Martin,  18  R.  I.  650,  30  Atl.  467.  See  Stoltz  v.  Doering,  112  III.  234. 
—  Ed. 


SECT.  IV.]  NUGENT  V.  VETZERA.  621 


SECTION  IV. 

GUARDIANSHIP    OF    THE    PERSON. 

NUGENT   V.   VETZERA. 

Chancery.     1S66. 

[Reported  Law  Ecports,  2  EquiUj,  704.] 

Motion  on  behalf  of  the  defendant,  Albin  Vetzera,  that  an  order 
appointing  the  plaintiff  Mrs.  Nugent  and  her  husband,  and  the  Coun- 
tess Gifford,  as  guardians  of  the  infant  plaintiffs  during  their  respective 
minorities,  might  be  discharged,  and  that  such  guardians  might  be 
ordered  to  deliver  up  the  infants,  who  were  Austrian  subjects,  to  the 
custody  of  Signor  Vetzera,  their  guardian  duly  constituted  by  the  Im- 
perial and  Royal  (Austrian)  Consular  Court  at  Constantinople  ;  and  also 
on  behalf  of  the  infant  defendants,  that  an  order  directing  tliat  plain- 
tiffs should  be  at  liberty  to  serve  the  bill  upon  them  out  of  the  jurisdic- 
tion, might  be  discharged. 

The  facts  were  shortly  as  follows  :  — 

The  father  of  the  infant  plaintiffs  and  defendants,  Signore  Theodore 
Baltazzi,  was  a  Greek  by  birth,  but  an  Austrian  subject,  and  carried  on 
the  business  of  a  banker  at  Constantinople  until  his  death  in  June,  1860. 
By  his  wife,  who  was  an  Englishwoman,  and  a  member  of  the  Church 
of  England,  he  had  ten  children,  all  of  whom  survived  him  and  were 
still  under  twenty-four,  the  age  of  majority  according  to  the  Austrian 
law.  Signor  Baltazzi  died  intestate,  and  administration  of  his  estate, 
which  was  very  considerable,  was  granted  to  his  widow  by  the  Austrian 
Consular  Court  at  Constantinople,  and  she,  and  Etienne  Mavrocordato, 
were  also  appointed  by  that  tribunal  guardians  of  the  persons  of  the 
intestate's  infant  children. 

Early  in  1863  Madame  Baltazzi  contracted  a  second  marriage  with 
Mr.  Alison,  Her  Britannic  Majesty's  envoy  in  Persia,  and  about  the 
same  time  Etienne  Mavrocordato  resigned  his  office  of  guardian,  upon 
which  Signor  Albin  Vetzera  (the  defendant  now  moving),  the  secre- 
tary to  the  Austrian  Embassy  at  Constantinople,  was  appointed  one  of 
the  guardians  in  his  place.  Upon  the  death  of  their  mother,  Mrs. 
Alison,  in  December,  1863,  Epaminondas  de  Baltazzi  was  appointed 
guardian  of  the  children  in  her  place.  In  July,  1865,  Epaminondas  de 
Baltazzi  resigned  his  office  of  guardian,  partly  (as  it  was  alleged)  from 
differences  between  himself  and  Albin  Vetzera  as  to  the  management 
of  the  children  and  administration  of  the  intestate's  property,  of  which 
they  were  joint  "  curators  "  or  trustees,  but  principally  from  his  being 
unable  to  comply  with  the  direction  of  the  Consular  Court  ordering 
him  to  fix  his  residence  at  Vienna  for  the  purpose  of  having  the  chil- 
dren educated  there. 


622  NUGENT   V.   VETZERA,  [CHAP.  XI. 

On  the  24th  of  July,  1865,  the  resignation  of  de  Baltazzi  was  ac- 
cepted, and  by  a  decree  of  the  Austrian  Consular  Court  of  the  same 
date,  Vetzera  was  appointed  sole  guardian  of  the  children,  with  a  direc- 
tion that  they  should  be  brought  up  in  the  religion  of  their  father,  and 
sent  as  soon  as  possible  to  Vienna  "  in  order  to  receive  their  education 
in  that  city,  the  onl}'  mode  of  awakening  and  consolidating  the  senti- 
ments of  faithful  Austrian  subjects." 

It  appeared  that  Madame  Baltazzi  was  alwa\s  most  anxious  that  her 
children  should  receive  an  English  education,  and,  with  the  consent  of 
her  husband,  they  were  all  brought  up  as  members  of  the  Church  of 
England.  Two  of  the  girls  were  sent  to  school  in  England  during  his 
lifetime,  and  in  1861  the  eldest  bo}'  was  sent  over  to  this  country,  and 
in  1862,  after  the  marriage  of  the  eldest  daughter  to  Mr.  Nugent,  a 
gentleman  living  in  London,  two  more  boys  and  two  of  the  girls  were 
brought  over  from  Constantinople  to  P^ngland  under  the  care  of  Count- 
ess Gifford,  and  were  now  being  educated  in  this  country,  spending 
their  holidays  with  their  married  sister,  Mrs.  Nugent. 

The  state  of  the  famih',  and  the  ages  and  residences  of  the  children 
at  the  time  of  filing  the  bill  (December,  1865)  will  appear  from  the 
following  tabular  statement :  — 

Mesidi'tig  in  Englanxl. 

Mrs.   Nugent,   the  plaintiff,  who  was  married  in  1862  to  Albert 

Llewellyn  Nugent  (a  nephew  of  Field  Marshal  Count  Nugent)   .  23 

Alexandre  (now  at  Eton) 16 

Hector  (at  Rugby) 15 

Aristides  (preparatory  school  at  Cheam) 14 

Eveline      fat  Mrs.    Watson's  school   in  Gloucester   Crescent,  |  12 

Charlotte  \      Hyde  Park )  11 

Hesiding  at  Constantinople. 

Helen  (wife  of  Signor  Albin  Vetzera) 19 

Mary 17 

Henry 8 

Julia 5 

After  the  resignation  of  Epaminondas  de  Baltazzi,  Mrs.  Nugent 
petitioned  the  Consular  Court,  but  without  success,  for  the  appoint- 
ment of  licrself  as  guardian  over  her  itifant  brothers  and  sisters,  and 
in  the  meantime  Vetzera  announced  his  intention  of  removing  one  of 
the  bo3'8  and  the  two  girls  from  England,  and  sent  over  a  confidential 
female  servant  to  take  care  of  them  during  their  journey  to  Constanti- 
nople. Mr.  and  Mrs.  Nugent  refused  to  let  the  children  go,  and  act- 
ing upon  the  circumstance  that  a  portion  of  the  intestate's  estate 
(£160,000)  was  invested  in  consols  and  in  India  5  per  cents,  they 
had,  on   the  2d  of  December,  1865,  filed  this  bill  for  the  purpose  of 


SECT.  IV.]  NUGENT   V.   VETZERA.  623 

making  the  infants  wards  of  court,  securing  the  trust  funds  in  this 
countr\'  for  their  benefit,  and  having  guardians  appointed,  and  a  proper 
scheme  for  their  maintenance  settled  by  the  court. 

On  the  13th  of  December,  1865,  an  order  was  obtained  for  service  of 
the  bill  upon  the  defendants  out  of  the  jurisdiction,  viz. :  Albin  and 
Helen  Vetzera,  the  three  infants,  Mary,  Henry,  and  Julia  Baltazzi,  liv- 
ing with  them  at  Constantinople,  and  Mr.  Gilbertson,  who  was  one  of 
the  trustees  of  Mrs.  Nugent's  marriage  settlement. 

On  the  19lh  of  December,  1865,  an  order  was  obtained  appointing 
Mr.  and  Mrs.  Nugent  and  the  Countess  Gifford  guardians  of  the  infant 
plaintiffs,  and  giving  liberty  to  serve  a  copy  of  the  order  upon  the 
defendant  Albin  Vetzera  at  Constantinople. 

Against  these  orders  the  present  motion  was  made  on  behalf  of  the 
defendant  Albin  Vetzera. 

In  the  meantime,  on  the  22d  of  December,  1865,  an  order  was  made 
b}'  the  Austrian  Consulate,  on  the  petition  of  Vetzera,  authorizing  hira 
to  suspend  all  further  payments  of  the  allowance  to  the  infants  for  the 
purpose  of  their  education  in  England,  until  thev  should  have  been  put 
under  the  control  of  their  guardian,  and  also  of  Mrs.  Nugent's  allow- 
ance, until  she  should  have  ceased  to  interfere  in  the  affairs  of  the 
guardianship. 

Against  this  order,  and  that,  by  which  her  petition,  that  she  might 
be  appointed  guardian,  was  refused,  Mrs.  Nugent  had  appealed  to  the 
Supreme  Court  of  Vienna. 

In  his  affidavit  filed  in  support  of  the  present  motion,  the  defendant 
Vetzera  stated  that  he  was  dissatisfied  with  the  progress  made  by 
Eveline  and  Charlotte  with  their  schoolmistress,  and  also  that  he  con- 
sidered it  to  be  his  dut}"  as  guardian  to  obey  the  directions  of  the  Aus- 
trian Consular  Court,  and  remove  the  infants  from  England.  For  that 
purpose  he  had  made  arrangements  that  Eveline  and  Charlotte  should 
reside  with  himself  and  his  wife  at  Constantinople,  and  a  competent 
governess  for  their  education  at  his  own  house  was  already  engaged. 
With  regard  to  the  boys,  he  proposed  to  place  one  of  them  (Hector) 
with  a  gentleman  and  his  wife,  of  the  liighest  respectability,  residing 
in  Austria,  but  stated  that  he  had  no  present  intention  of  removing 
Alexandre  and  Aristides  from  where  they  now  were,  though  he  con- 
sidered it  of  the  greatest  importance  that  the  boys  "  should  have  the 
advantage  of  an  Austrian  education,  to  qualifv  them  hereafter  for  that 
position  to  which,  frorn  their  rank  and  fortune,  they  would  as  Austrian 
subjects  in  Austria  naturally  aspire." 

Evidence  was  also  given  as  to  the  jurisdiction  over  infant  Austrian 
subjects  exercised  by  the  Austrian  courts,  and  b}'  them  committed  to 
the  guardians. 

The  affidavits  on  behalf  of  the  plaintiffs  in  favor  of  keeping  the  chil- 
dren in  P^ngland,  need  not  be  stated  in  detail,  as  the}'  were  directed  to 
the  superiority  of  an  P^nglish  public  school  education,  and  English 
associations,   over  education    at  Constantinople,  or  even   at  Vienna. 


624  NUGENT   V.   VETZERA,  fCHAP.  XI. 

Attention  was  also  called  in  the  affidavits  to  the  strongl}'  expressed 
and  acted  upon  wish  of  the  mother  that  the  children  should  be  brought 
up  in  England.^ 

Wood,  V.  C.  As  regards  the  more  important  matter  in  this  case, 
a  question  of  very  great  importance,  but  I  think  really  of  small  dif- 
ficulty, is  raised.  Having  regard  to  the  principles  of  international 
law,  and  the  course  that  all  courts  have  taken  of  recognizing  the 
proceedings  of  the  regularly  constituted  tribunals  of  all  civilized  com- 
munities, and  especially  of  those  in  amicable  connection  with  this  coun- 
try, it  is  impossible  for  me  entirely  to  disregard  the  appointment  of  a 
guardian  by  an  Austrian  court  over  these  children,  wlio  are  Austrian 
subjects,  and  children  of  an  Austrian  father,  merely  because  those  who 
preceded  Signor  Vetzera  in  his  guardianship  have  taken  the  course  of 
sending  the  children  over  to  this  country  for  the  purpose  of  educating 
them,  seeing  that  he  is  now  desirous  of  revoking  that  arrangement.  I 
am  now  asked  in  effect  to  set  aside  the  order  of  the  Austrian  court, 
and  declare  that  this  gentleman  so  appointed  cannot  recall  his  wards 
who  have  been  sent  to  this  country'  for  the  purpose  of  their  education. 
It  would  be  fraught  with  consequences  ofjv^ry  serious  difficult}',  and^ 
coiiti-ary  to.  nJl  priiv-'pi^g  nf  rigiii-.  and  justice,  if  this  court  were  to  hold 
fliatwhen  a  parent  or  guardian  (for  a  guardian  stands  exactly  in  the. 
rrTnTojn^lMlin  n^<  a  parent)  in  n  foroi^jn  country  nvnils  hiiiiselfofthe 
•^portunityjor  educatioji  afforded  by  this  counUy,  and  sends  jiis  chjl- 
— Tifen  over  heraJiieLniust  do  it^-at  the  risk  of  never  being  able  to  recall 


Them,  because^ this  court  might  b^  of  opinion  that  an  English.couraejaf 
education  is  better  than  that  adopted  in  the  coiintry  ta.whicJj-they  be- 
lon^]  r~cannot  conceive  anything  more  startling  than  such  a  notion, 
which  would  involve  on  the  other  hand  this  result,  that  an  English 
ward  could  not  be  sent  to  France  for  his  holidays  without  the  risk  of 
his  being  kept  there  and  educated  in  the  Roman  Catholic  religion,  with 
no  power  to  the  fatiier  or  guardian  to  recall  the  child.  Surelj'  such  a 
state  of  jurisprudence  would  put  an  end  to  all  interchange  of  friendship 
between  civilized  communities.  What  I  have  before  me  is  nothing 
more  or  less  than  that  case. 

Now.  it  appears  to  me  plain,  that  I  must  take  these  children  as  re- 
maining in  this  country  only  with  the  sanction  of  Signor  Vetzera,  and 
without  any  interference  on  the  part  of  the  Austrian  court.  Then  at  a 
proper  time  he  wishes  to  recall  them  from  England.  Of  course  if  there 
had  been  no  application  to  tliis  court  no  one  can  doubt  the  course 
which  things  would  have  taken.  lie  being  sole  guardian,  when  he 
thought  the  children  had  been  long  enough  at  school  in  England  would 
take  them,  if  he  thought  fit,  from  this  country  and  they  would  be 
removed. 

[His  Honor,  after  stating  the  filing  of  the  bill  and  tlie  appointment 
of  guardians  in  England  who  wished  to  retain  the  children  in  this  coun- 
try, continued  :  — ] 

1  Arguments  of  counsel  arc  oniitted.  —  Ed 


SECT.  IV.]  ISIUGENT    V.    VETZERA.  625 

This  application  being  made,  it  is  now  souglit  to  prevent  Signer 
Vetzera  from  removing  tlae  children  so  sent  to  this  country  for  their 
education,  on  the  plea  that  this  court  has  appointed  guardians  here  in 
England  (for  which  the  jurisdiction  is  not  to  be  disputed),  and  that 
having  so  appointed  them,  the  court  will  do  no  more  than  look  at  what 
is  most  for  the  benefit  of  the  int'ants. 

Lord  Bute's  Case,  9  H.  L.  C.  440,  is  cited  for  the  purpose  of  showing 
that  I  ought,  if  satisfied  that  it  is  more  for  the  interest  of  the  infants 
that  they  should  remain  here  than  be  sent  back  to  their  own  country,  to 
supersede  the  authority  of  the  foreign  guardian  and  the  authority  of 
the  court  that  has  appointed  him,  which  takes  care  of  the  education  of 
its  own  subjects,  and  directs  how  it  shall  be  carried  into  effect.  It 
appears  to  me  that  no  doctrine  of  that  kind  was  in  any  way  propounded 
in  Lord  Bute's  Case,  and  certainly  the  other  authority  referred  to,  of 
Dawson  v.  Jay,  3  D.  M.  &  G.  764  (called  the  American  case),  has  no 
bearing  upon  the  subject.  Lord  Cranworth  there  puts  his  decision  on 
the  ground  that  the  child  turned  out  to  be  a  British  subject,  and  that 
he  had  no  authority  to  send  a  British  subject  out  of  the  realm.  In 
Lord  Bute's  Case  the  young  marquis  was  a  subject  of  the  United  King- 
dom, and  had  very  large  property  in  England  as  well  as  in  Scotland, 
and  the  question  was,  between  the  English  and  Scotch  guardians,  to 
which  class  the  Crown,  as  parens  j^atrm,  having  full  power  to  deal 
with  the  matter,  should  assign  him.  Can  that  be  compared  with  a  case 
in  which  the  question  is,  whether  I,  sitting  here  as  a  judge  in  this 
country,  am  to  decide  whether  or  not  the  courts  of  the  Emperor  of 
Austria  have  rightly  decided  upon  the  mode  in  which  they  wish  their 
subjects  to  be  educated?  The  proposition  is  entirely  beyond  all  reason, 
and  this  court  would  be  exceeding  very  largely  the  judicious  exercise 
of  the  powers  which  every  tribunal  has  in  an  independent  country  over 
those  who  may  be  within  its  control  and  jurisdiction,  if  it  attempted  to 
form  a  judgment  whether  or  not  it  was  more  expedient  that  these  chil- 
dren, who  are  Austrian  subjects,  should  be  brought  up  in  England 
rather  than  in  Austria.  The  case  apparently  nearest  in  principle,  per- 
haps, though  not,  on  examination,  to  be  compared  with  it,  is  that  in 
which  a  Roman  Catholic  parent  abandoning  his  child  to  Protestant 
instruction  for  several  years,  has  sought  to  change  its  course  of  educa- 
tion and  bring  it  back  to  his  own  form  of  religion.  There  the  court 
would  not  allow  the  child's  religious  principles  to  be  disturbed  by 
changing  the  course  of  Instruction  unde'r  which  it  had  so  long  been 
allowed  to  remain,  holding  that  the  father  had,  in  effect,  abandoned 
his  right  of  choice.  But  that  is  not  the  case  here.  I  see  nothing  on 
the  facts  to  induce  me  to  suppose  that  either  this  gentlemen  as  guar- 
dian, or  the  courts  of  Austria,  in  exercise  of  their  rights  over  their  own 
subjects,  have  at  all  abandoned  these  children,  merely  because  they 
have  allowed  them  to  be  educated  for  some  four  or  five  years  in  this 
country,  where  it  was  thought  they  could  best  be  educated.  To  hold 
otherwise  would  render  it  most  unwise  for  any  foreign  country  to  send 
her  subjects  to  this  country,  as  this  court  might  say  that  the  Queen  of 

40 


626  NUGENT   V.   VETZERA.  [CHAP.  XI. 

England,  a,s  pare7is  patrice^  can  see  to  the  education  of  children  better 
than  the  Emperor  of  Austria,  as  parens  patrice  within  his  own  domin- 
ions, can.  The  same  authority  which  we  claim  here  on  behalf  of  the 
Crown  as  parens  patrice^  is  claimed  by  every  other  independent  State, 
and  should  not  be  interfered  with  except  on  some  grounds  which  I  do 
not  think  it  necessary  to  specify,  guarding  myself,  however,  against 
anything  like  an  abdication  of  the  jurisdiction  of  this  court  to  appoint 
guardians.  With  respect  to  the  English  guardians  of  these  children  I 
hold  that  the  court  has  power  to  appoint  them,  and  I  continue  those 
that  have  been  appointed.  The  case  may  well  happen  of  foreign  chil- 
dren in  this  countr}'  without  an}'  one  to  look  after  or  care  for  them,  or 
who  may  require  the  protection  of  this  court  to  save  them  from  being 
robbed  and  despoiled  b}^  those  who  ought  to  protect  them.  These 
children,  on  the  other  hand,  seem  to  have  met  with  nothing  but  kind- 
ness from  their  relations  on  all  sides,  but  it  ma}-  be  desirable  that,  so 
long  as  they  remain  in  this  countr}-,  they  should  have  the  protection  of 
guardians  living  within  the  jurisdiction.  Out  of  respect  to  the  autho- 
rity of  the  Austrian  courts,  by  which  this  gentlemen  has  been  ap- 
pointed, I  reserve  to  him,  in  the  order  I  am  about  to  make,  all  such 
power  and  control  as  might  have  been  exercised  over  these  children  in 
their  own  country'  if  they  were  there,  and  had  not  been  sent  to  Eng- 
land for  a  temporar}'  purpose.  Taking  that  view  of  the  case  1  have 
not  asked  to  see  the  children.  I  could  not  be  influenced  by  anything  I 
might  hear  from  them.  I  assume  that  they  are  most  anxious  to  remain 
here,  and  not  to  go  back  to  their  own  country,  but  I  have  no  right  to 
deprive  the  guardian  appointed  b}'  the  foreign  court  over  them  of  the 
control  which  he  has  lawfully  and  properly  acquired,  has  never  relin- 
quished and  never  abandoned,  and  under  which  authoritj*  alone  they 
have  remained  here,  and  been  maintained  and  supported  here. 

As  regards  the  service  of  the  bill  on  those  children  who  are  out  of 
the  jurisdiction,  I  must  take  it  on  the  present  bill,  as  no  demurrer  has 
been  filed,  that  the  order  has  been  properly  made.  It  is  alleged  that 
all  the  debts,  funeral,  and  testamentary  expenses  of  the  testator  have 
been  paid,  that  part  of  his  property  is  invested  in  this  countr}-,  and 
that  by  the  law  of  Austria  these  funds  are  divisible  in  given  shares 
among  the  plaintiffs,  and  other  children  abroad  wlio  are  interested  in 
them,  and  therefore  it  has  been  tliought  right  that  they  should  be 
served  with  a  cop}'  of  the  bill,  in  order  tliat  they  ma}-  come  in  in  re- 
spect of  their  interest  in  the  stock.  I  should  be  the  more  indisposed  to 
disturb  that  order,  as  it  is  not  asked  to  grant  any  proceeding  against 
them,  but  that  tliey  should  come  in  upon  their  common  interest  with 
the  plaintiffs.  I  think,  therefore,  as  things  stand  on  the  present  state 
of  the  record,  tliat  I  am  not  at  liberty  to  discharge  that  order,  and  it 
follows,  as  a  mere  matter  of  course,  that  I  ought  to  appoint  a  guardian 
ad  liteyn  for  the  purpose  of  answering.^ 

1  Compare  Dawson  u.  Jay,  3  D.  M.  &  G.  764  ;  Johnstone  v,  Beattie,  10  CI.  <i  F.  150  ; 
Stuart  V.  Marquis  of  Bute,  9  H.  L.C.  440.  —Ed. 


CHAP.  Xll.j  WATERS   V.   BARTON.  627 


CHAPTER  Xn. 
PROPERTY. 


WATERS   V.   BARTON. 

Supreme  Court  of  Tennessee.     1860. 
[Reported  1  Coldwell,  450.] 

McKiNKET,  J.  The  complainant,  Elizabeth,  is  the  cnl}^  child  of 
David  A.  Barton,  who  died  in  Texas,  in  December,  1844,  leaving 
the  complainant,  his  only  distributee,  then  an  infant  of  about  eleven 
months  old. 

This  bill  was  filed  originally,  in  the  name  of  her  next  friend,  to  re- 
cover two  slaves,  named  Henry  and  Mack,  claimed  to  have  been  the 
property  of  said  D.  A.  Barton,  who  died  intestate. 

The  allegations  and  proof,  in  regard  to  the  ownership  of  said  slaves, 
by  David  A.  Barton,  is  contradictory.  For  the  complainants,  it  is 
alleged  that  Joshua  Barton,  the  father  of  David  A.,  made  a  parol  gift 
of  the  slaves  to  him.  The  defendants  deny  the  gift,  and  allege  that 
the  slaves  were  merely  loaned  by  the  father  to  his  son,  for  the  period  of 
two  years,  at  the  expiration  of  which  time  they  were  to  be  returned. 

The  proof  shows,  that  in  September,  1842,  the  intestate,  David  A., 
whose  residence  was  in  Texas,  was  on  a  visit  to  his  father's  family,  who 
resided  in  Cannon  County,  Tennessee,  and  that,  about  to  return  home, 
Joshua  Barton,  his  father,  placed  said  two  slaves  in  his  possession, 
to  take  with  him  to  Texas;  that  he  did  take  them  with  him  to  his 
home,  in  Texas,  where  he  arrived  about  the  15th  of  October,  1842; 
and  that  he  retained  possession  of  the  slaves,  and  claimed  them  as  his 
own  property,  from  that  date  until  his  death,  which  happened  on  the 
20th  December,  1844,  being  a  period  of  more  than  two  years  ;  and 
that  after  his  death,  they  came  into  the  possession  of  the  adminis- 
trator of  his  estate,  who  delivered  them  into  the  custody  of  the  guar- 
dian of  the  complainant,  with  whom  they  remained  until  November, 
1845,  when  by  the  procurement  of  Joshua  Barton,  they  were  enticed 
away  and  brought  to  Tennessee,  and  taken  possession  of  by  Joshua 
Barton,  who  claimed  them  as  his  property;  and  who,  shortly  after- 
wards, delivered  the  slave,  Mack,  into  the  possession  of  his  son-in-law, 
the  defendant,  Ramsey,  who  still  has  him  in  his  possession ;  and  at  a 


628  WATERS    V.    BARTON.  [CHAP.  XII. 

later  period,  he  disposed  of  Henry,  to  his  son,  the  defendant,  William, 
who  still  retains  him. 

Joshua  Barton  died  in  the  spring  of  1858  ;  the  defendant,  William, 
is  the  personal  representative  of  his  estate,  and  the  other  defendants 
are  the  legatees  and  devisees  under  his  will. 

We  do  not  deem  it  necessary'  to  comment  upon  the  conflicting  testi- 
mony, in  detail,  with  the  view  of  sustaining  our  conclusion  as  to  its 
effect.  Suffice  it  to  say,  that  upon  a  review  of  all  the  evidence,  and  more 
especially  the  declarations  of  Joshua  Barton,  as  proved  by  Stokes  and 
Farmer,  at  the  time  the  slaves  were  brought  back  from  Texas,  in  Novem- 
ber, 1845,  the  preponderance  of  the  proof,  in  our  opinion,  is,  that  the 
transaction  was  a  gift,  and  not  a  loan,  of  the  slaves,  by  Joshua  Barton, 
to  his  son,  David  A. 

This  brings  us  to  the  question  of  law,  arising  upon  the  facts  stated ; 
namely :  Whether  or  not,  under  the  Statute  of  Limitations  of  Texas, 
David  A.  Barton  acquired  such  a  title  to  the  slaves  as  will  entitle  the 
complainants,  suing  in  his  right,  to  recover  them  in  the  courts  of  this 
State. 

By  the  Statute  of  Texas,  suit  must  be  commenced,  in  a  case  like  this 
present,  "  witliin  two  3ears,  next  after  the  cause  of  such  action,  or  suit, 
and  not  after."  See  Plartley's  Dig.,  Art.  2377;  and  this  statute  "  ap- 
plies no  less  to  foreign  than  to  domestic  claims."     lb.,  Art.  2398. 

In  the  construction  of  this  statute,  it  has  been  declared  by  the  Su- 
preme Court  of  that  State,  that  its  efl'ect  is,  not  only  to  bar  the  rights 
of  action  of  the  former  owner,  but  also  to  extinguish  his  right ;  and  to 
vest  the  right  of  property  absolutel}-  in  the  adverse  possession,  so  that 
if,  after  the  bar  had  been  completed,  the  former  owner  should  regain 
the  possession,  the  possessor  might  maintain  an  action  against  him  for 
the  recovery  of  the  propert}'.     See  9  Tex.  Rep.  123. 

For  the  defendants,  it  is  insisted,  that,  inasmuch  as  by  the  statute  of 
this  State,  where  the  suit  is  brought,  an  adverse  possession  of  three 
years  is  required  to  give  title,  under  a  void  parol  gift  of  slaves,  our  own 
law,  and  not  that  of  Texas,  must  govern  tl;e  decision  of  the  case. 

The  counsel  on  both  sides  refer  to  Story's  Conflict  of  Laws,  §  582 ; 
but  they  differ  in  their  understanding  of  the  import  of  that  authority. 

The  counsel  for  the  defendants  admit  that  if  both  parties  had  been 
resident  within  the  jurisdiction  of  Texas,  during  the  whole  period  pre- 
scribed by  the  law  of  that  State,  to  complete  the  bar,  the  title  thus 
acquired  by  the  possessor  might  be  set  up  by  the  complainants,  in  our 
courts,  in  the  present  case,  and  a  recovery  of  the  slaves  be  effected  by 
force  thereof. 

But,  forasmuch  as  .Joshua  Barton  was  a  resident  of  Tennessee,  and  not 
subject  to  tlie  jurisdiction  or  laws  of  Texas,  during  the  jieriod  the  slaves 
were  in  adverse  possession  of  David  A.  Barton,  in  that  State,  it  is  de- 
nied that  any  such  effect  can  be  predicated  of  the  statute  of  tliat  State. 
IMr.  Story  put  this  case  :  Suppose  personal  property  is  adversely  held 
in  a  State,   for  a  period  beyond  that  prescribed  l)y  the   laws  of  that 


CHAP.  XII.]  WATEKS    V.    BARTON.  629 

State  ;  and  after  that  period  has  elapsed,  the  possessor  should  remove 
into  another  State,  which  has  a  longer  period  of  prescription,  or  is  with- 
out any  prescription,  could  the  original  owner  assert  a  title  there  against 
the  possessor,  whose  title,  by  the  local  law,  and  the  lapse  of  time,  had 
become  tinal  and  conclusive  before  the  removal?  It  has  certainlv  been 
thought,  says  the  author,  that,  in  such  a  case,  the  title  of  the  possessor 
cannot  be  impugned.     See  section  582  and  cases  referred  to  in  note  2. 

The  case  supposed  above,  as  we  understand  the  author,  is,  in  prin- 
ciple, precisely  the  present  case.  Every  sovereignty  possesses  the 
undoubted  power  to  regulate  the  rights  of  property  situate  within 
its  own  jurisdiction. 

It  may  limit  all  rights  of  action  to  certain  prescribed  periods,  and 
ma}'  ordain  that,  after  the  expiration  of  the  periods  thus  prescribed, 
not  only  the  right  of  action,  but  the  claim  or  title  likewise,  shall  be 
extinguished. 

And  if  a  positive  title  to  property  be  then  acquired  and  perfected  by 
the  local  law  of  the  place,  where  situate  at  the  time,  upon  what  sound 
principle  can  it  be  maintained  that  such  title  can  be  effected  or  defeated 
by  the  removal  of  the  property  to  another  country,  by  the  possessor,  or 
by  its  removal  bj'  another,  without  his  consent? 

In  such  a  case,  can  it  be  material  whether  or  not  the  former  owner 
was  resident  within  the  jurisdiction,  by  whose  local  law  the  possessor 
had  become  vested  with  an  absolute  title  to  the  property  ?  If  it  be  said 
that  the  former  owner,  by  residing  within  the  jurisdiction,  during  the 
period  prescribed,  voluntarilj-  subjected  himself  to  the  operation  of  the 
local  laws  of  the  place,  and  therefore  cannot  complain  that  his  right  is 
taken  away  by  those  laws,  as  the  result  of  his  own  laches,  may  it  not  be 
said  with  quite  as  much  reason,  and  force  of  argument,  that,  by  know- 
ingly suffering  his  property  to  be  taken,  and  to  remain  within  the 
jurisdiction,  during  the  period  prescribed  b}-  the  local  law,  he  thereby 
voluntarily  subjected  his  property  and  rights  to  the  operation  of  such 
local  laws  ? 

In  the  latter  case,  as  much  as  in  the  former,  the  loss  of  his  right  is 
the  result  of  his  own  laches. 

Our  conclusion,  therefore,  is,  that  under  the  law  of  Texas,  the  title 
of  Joshua  Barton  —  though  not  a  resident  of  that  State  —  was  extin- 
guished, and  the  title  perfected  in  David  A.  Barton  ;  and  that  the  title 
thus  acquired  may  be  set  up  b}-  the  complainants,  in  the  courts  of  this 
State,  against  those  claiming  thb  slaves,  by  the  subsequent  disposition 
of  them  made  by  Joshua  Barton. 

Decree  affirmed} 

Ace.  Shelby  v.  Guy,  11  Wheat.  361  ;  Eabun  v.  Rabun,  15  La.  Aun.  471  ;  Sessions 
V.  Little,  9  N.  H.  271 ;" Sleeper  v.  Pa.  R.  R.,  100  Pa.  259.  —Ed. 


6S0  EDGERLY  V.    BUSH.  [CHAP.  XII. 

EDGERLY  v.   BUSH. 
Court  of  Appeals,  Kew  York.     1880. 

[Reported  81  New  York,  199.] 

This  action  was  brought  for  the  alleged   couversion  of  a  span  of 
horsus. 

The  facts,  as  found  b}'  the  referee,  are  as  follows :  — 
One  Stephen  Baker  was  born  in  Lower  Canada  and  resided  there  till 
1873.  In  that  year  he  went  to  Moriah,  in  New  York,  engaged  there  in 
business  and  resided  there.  While  a  resident  of  Moriah  he  executed 
to  the  plaintiff,  a  resident  also  of  Moriah,  on  the  9th  day  of  March, 
1875,  a  chattel  mortgage  on  property  including  the  span  of  horses  in 
question.  This  mortgage  was  duly  filed  March  10,  1875.  The  sum 
was  payable  in  monthly  instalments,  the  first  payment  to  be  made 
June  1,  1875.  The  mortgage  contained  a  clause  that  in  case  of  non- 
payment, or  in  case  the  mortgagor  or  any  other  person  should  remove, 
secrete,  or  dispose  of  the  property,  or  if  the  mortgagee  deemed  it  neces- 
sary, he  might  take  possession,  otherwise  the  property  was  to  remain  in 
the  mortgagor's  possession  until  the  time  for  the  first  payment.  No 
part  of  the  sum  secured  has  ever  been  paid.  On  the  10th  of  Ma}-,  1875, 
Baker  returned  to  Lower  Canada,  taking  the  property  with  him,  and  there 
he  has  resided  ever  since.  In  November,  1875,  at  St.  Jean  Chrysos- 
tom,  in  Lower  Canada,  one  Francis  De  Lisle,  of  that  place,  a  regular 
trader,  dealing  in  horses,  sold  the  horses  in  question  to  one  Bromley,  a 
resident  of  Plattsburgh,  in  this  State.  Bromley  made  the  purchase  in 
good  faith  and  in  ignorance  of  the  plaintiff's  claim.  The  horses  were  in 
De  Lisle's  possession  at  the  time  and  were  at  once  delivered  to  Bromley 
and  immediately  broiTght  by  him  to  Plattsburgh.  It  does  not  appear 
how  the  horses  came  into  the  possession  of  De  Lisle.  On  the  10th  of 
December,  1875,  Bromley  learned  that  the  plaintiff  claimed  to  have  a 
mortgage  on  the  horses.  To  prevent  their  seizure,  by  the  plaintiff,  he 
immediately  removed  them  to  Canada  for  the  purpose  of  trading  back 
with  De  Lisle.  On  the  13th  of  December,  1875,  in  Canada,  Bromley 
sold  the  horses  to  the  defendant.  At  that  time  the  defendant  was  a 
resident  of  this  State.  The  horses  in  question  remained  in  Canada, 
and  since  then  they  had  not  been  brought  into  this  State  up  to  the  time 
when  tliis  action  was  commenced.  The  defendant  was  informed  by 
Bromley  that  he  had  run  the  horses  into  Canada  to  avoid  a  claim  or 
seizure  under  a  mortgage.  PlaintilT  made  a  demand  for  the  horses  but 
defendant  refused  to  deliver.  Plaintiff  did  not  reimburse,  or  oflTer  to 
reimburse  to  defendant,  the  amount  paid  by  him  or  by  Bromley  for  the 
horses.  L'^nder  the  laws  of  Lower  Canada,  if  an  article  of  personal 
property,  lost  or  stolen,  be  sold  in  a  fair  or  market,  or  at  a  public  sale, 
or  purchased  from  a  trader  dealing  in  similar  articles,  the  owner  can- 


CHAP.    XII.]  EDGERLY   V.    BUSH.  C3T. 

not  reclaim  it  without  reimbursing  to  the  purchaser  the  price  paid 
by  him.^ 

FoLGER,  C.  J.  This  is  an  action  for  the  conversion  of  chattels.  It 
is  clear  that  if  the  plaintiff  had  the  title  to  them,  or  the  right  to  take 
immediate  possession  of  them,  the  defendant  exerted  such  dominion 
over  them  as  was  in  law  a  conversion  of  them.  It  is  also  clear  that 
the  plaintiff  had  the  title  to  the  property  by  the  laws  of  this  State,  and 
the  right  to  the  immediate  possession  of  it. 

The  defendant  must  make  his  defence,  if  he  may  at  all,  upon  a  title 
got  by  Bromle}'  from  De  Lisle,  to  which  he  has  succeeded.  De  Lisle 
was  a  resident  of  Canada,  and  a  trader  dealing  in  articles  like  the  prop- 
erty in  contest,  and  had  actual  possession  of  this  property  there  as  the 
proprietor  of  it.  Bromley  bought  it  of  him  in  good  faith,  gave  value  for 
it,  and  had  not  actual  notice  of  the  plaintiff's  right  to  it.  The  plaintiff 
has  never  reimbursed  to  Bromley  or  to  the  defendant  the  price  paid  for 
it  b}'  Bromley,  nor  has  he  offered  so  to  do. 

We  think  that  these  facts  make  a  title  in  Bromley  that  the  law  of 
Lower  Canada  would  uphold  in  that  jurisdiction.  We  deem  it  un- 
necessary to  go  into  the  detail  of  the  interpretation.  The  questioa 
remaining  is,  which  law  is  to  prevail  in  determining  this  contest  — 
that  of  Lower  Canada,   or  that  of  this  State? 

We  take  note  that  the  plaintiff,  and  Baker  from  whom  the  plaintiff 
got  title,  were  residents  of  this  State  when  the  transfer  was  made  be- 
tween them  ;  that  it  was  a  transfer  of  property  which  was  then  here, 
whence  it  was  taken  witliout  the  consent  of  the  plaintiff;  that  the  trans- 
fer was  made  by  mutual  consent,  and  was  executed  and  valid  here  ;  that 
the  consideration  for  the  transfer  existed  and  passed  here ;  that  the 
plaintiff  and  defendant  were  and  are  residents  of  this  State ;  and 
that  the  forum  in  which  they  stand  is  here.  Thus  the  law  of  the  dom- 
icil,  and  the  law  of  the  then  situs  of  the  property,  and  the  law  of  the 
forum  in  which  the  remed\-  is  sought,  all  concur  to  sustain  the  right  of 
the  plaintiff.  The  law  of  the  domicil  of  the  owner  of  personal  property, 
as  a  general  rule,  determines  the  validity  of  ever^-  transfer  made  of  it 
b}'  him.  B3'  that  law,  as  it  exists  in  this  case,  the  plaintiff  became  the 
owner  of  this  propeitj'  before  it  was  taken  beyond  its  operation.  Bv 
that  law,  too,  an  owner  of  property  may  not  be  divested  of  it  without 
his  consent,  or  b}'  due  process  of  law  ;  plainly  not  by  a  dealing  with 
it  by  others  without  his  knowledge,  assent,  or  procurement.  Still, 
another  State  may  make  provision  by  statute  in  respect  to  personal 
propert}'  actually  within  its  jurisdiction.  Though  a  transfer  of  personal 
property-,  valid  b}-  the  law  of  the  domicil,  is  valid  everywhere  as  a  gen- 
eral principle,  there  is  to  be  excepted  that  territory  in  which  it  is 
situated  and  where  a  different  law  has  been  set  up,  when  it  is  necessary 
for  the  purpose  of  justice  that  the  actual  situs  of  the  thing  be  examined. 
Green  v.  Van  Buskirk,  7  Wall.  139.  Yet  the  statutes  of  that  land 
have  no  extraterritorial  force  proprio  vigore,  though  often  permitted 
i  Arguments  of  couusel  are  omitted.  —  Ed. 


632  EDGERLY    V.    BUSH.  [CHAP.    XII. 

by  comity  to  operate  in  another  State  for  the  promotion  of  justice, 
where  neither  the  State  nor  its  citizens  will  suffer  an}-  inconvenience 
from  the  application  of  them.  The  exercise  of  comit}'  in  admitting  or 
restraining  the  application  of  the  laws  of  another  countr}'  must  rest  in 
sound  judicial  discretion,  dictated  b}'  the  circumstances  of  the  case. 
Per  Parker,  Ch.  J.,  Blanchard  v.  Russell,  13  Mass.  6.  It  is  plain 
that  on  no  principle  applicable  to  this  case  could  the  sale  of  the  plain- 
tiffs property  b}'  another  having  no  authorit}'  from  him,  to  his  wrong 
indeed,  be  upheld,  save  that  it  was  authorized  b}'  the  statute  of  Lower 
Canada.  So  that  the  question  is  one  entirelv  of  the  comity  to  be  shown 
by  the  courts  of  this  State  to  the  enactments  of  another  countr}-.  Those 
statutes  not  only  enact  the  rule  of  market-overt  as  it  prevails  in  general 
in  England,  but  carry  it  further,  and  make,  as  in  the  city  of  London, 
every  sale  b}'  a  trader  dealing  in  like  articles  as  good  as  a  sale  at  mar- 
ket-overt. 

That  rule  does  not  obtain  in  this  State.  It  has  not  been  our  policy  to 
establish  it.  Our  policy  has  been,  and  is,  to  protect  the  right  of  owner- 
ship, and  to  leave  the  bu3'er  to  take  care  that  he  gets  a  good  title.  It 
would  be  to  the  contravention  of  that  polic}',  and  to  the  inconvenience 
of  our  citizens,  if  we  should  give  effect  to  the  statutes  of  Lower  Canada, 
to  the  divesting  of  titles  to  movables  lawfully  acquired  and  held  by  our 
general  and  statute  law,  without  the  assent  or  intervention,  and  against 
the  will  of  the  owner  by  our  law.  Notions  of  property  are  slight,  when 
a  bona  fide  purchase  of  stolen  goods  gives  a  good  title  against  the 
original  owner.  Per  Kent,  Ch.  J.,  Wheelwright  t'.  Depe3-ster,  1  Johns. 
470.  We  are  not  required  to  show  comity  to  that  extent,  especially  as 
it  is  to  our  citizens  alone  that  we  are  administering  justice. 

There  are  judgments  to  the  end  that  the  law  of  the  situs  of  the  mov- 
able propert}'  will  determine  who  is  entitled  to  it,  and  the  matter  of 
comit}'  is  not  taken  into  account.  A  notable  one  is  Cammell  v.  Sewell, 
in  the  Exchequer  Chamber,  5  II.  &  N.  728.  But  there  the  property 
had  not  been  in  England  until  after  the  sale  in  Norway,  and  had  never 
been  in  the  possession  of  the  English  owners.  We  doubt  whether,  in 
a  case  like  this,  where,  after  a  title  to  propert}'  has  been  acquired  by 
the  law  of  the  domicil  of  the  vendor,  and  of  the  situs  of  the  thing, 
and  of  the  forum  in  which  the  parties  stand,  in  a  contest  between  citi- 
zens of  the  State  of  that  forum,  it  has  ever  been  adjudged  that  such 
title  has  been  divested  by  the  surreptitious  removal  of  the  thing  into 
another  State,  and  a  sale  of  it  there  under  different  laws.  There  are 
decisions  that  it  has  not,  however.  See  Taylor  v.  Boardman,  25  Vt. 
5«1  ;  Martin  /■.  Hill,  12  Barb.  631;  French  v.  Hall,  9  N.  II.  137; 
Langworthy  v.  Little,  12  Cush.  109.  It  is  sought  to  distinguish  these 
cases  from  that  in  hand  ;  but  they  went  upon  a  principle  that  is  not  inap- 
plicable here.  In  them,  as  here,  a  right  to  movable  property  had  been 
acquired  in  one  State  in  a  mode  efficient  thereto  In'  its  laws.  The 
property  had  lieen  taken  into  another  State  where  that  mode  was  not 
sufficient  by  its  law  to  create  a  right.     But  the  right  acquired  by  that 


CHAP.  XII.]  EDGEKLY   V.   BUSH.  633 

mode  was  upheld.  In  all  the  cases  the  propert}'  was  taken  away  from 
under  the  laws  which  gave  the  right,  and  placed  under  the  operation  of 
laws  that  denied  the  right.  We  perceive  no  difference  in  those  cases 
from  this  that  we  have,  save  that  in  those  a  creditor  was  seeking  to 
recover  his  debt  out  of  the  property,  in  invitum  the  right  thus  acquired. 
Here  there  is  a  sale  of  the  property  between  third  parties  despite  the 
right.  In  those  it  was  sought  to  take  awa}'  the  right  by  a  public  judi- 
cial sale.  In  this  it  is  urged  that  the  right  has  been  destroyed  by  a 
private  sale.  Bv  the  laws  of  those  other  States  the  creditors  would 
have  succeeded.  So  here  the  third  parties  would  succeed  by  the  law  of 
Lower  Canada.  But  in  those  cases  the  law  of  the  State  where  the 
right  was  acquired  was  recognized,  and  force  given  to  it  in  another 
State,  and  under  different  law.     Why  should  it  not  be  in  this  case? 

Such  cases  as  Cranch  v.  McLachlin,  4  Johns.  34,  and  The  Helena, 
4  Rob.  Ad.  3,  do  not  conflicts  In  them  there  were  in  the  foreign  country 
legal  proceedings  in  rem,  or  analogous  thereto,  so  that  the  question  was 
of  respect  for  tlie  judicial  proceedings  of  another  country.  The  case  of 
Greenwood  v.  Curtis,  6  Mass.  358,  recognized  the  principles  upon  which 
our  judgment  proceeds,  but  held  that  the  facts  did  not  call  for  the  appli- 
cation of  them. 

The  order  of  the  General  Term  should  be  reversed,  and  judgment  on 
report  of  the  referee  be  affirmed. 

All  concur,  except  Rapallo,  J.,  not  voting. 

Order  reversed  and  Judgment  affirmed. 


634  CAMPBELL   V.   TOUSEY.  [CHAP.  XIIL 


CHAPTER  XIII. 
INHERIT  AXCE. 


CAMPBELL  V.  TOUSEY. 
Supreme  Court,  Xew  York.     1827. 

[Reported  7  Cowcn,  64.] 

Assumpsit  for  money  lent  to  the  testator  of  the  defendant.  Pleas : 
(1)  JVo?i  assumpsit;  (2)  iVe  unqiies  executor;  (5)  ATo  assets.  The 
plaintift"  on  the  trial  proved  his  claim  to  $94.42,  and  that  the  defend- 
ant's testator  resided  and  died  in  Pennsylvania  in  1823.  He  also 
proved  assets  to  about  $700,  which  the  defendant  had  received  in 
Pennsylvania  and  brought  from  that  State  to  this ;  and  that  he  had 
received  a  certain  amount  in  tliis  State.  The  defendant  proved  that 
he  was  appointed  executor  by  the  will  of  Booth,  and  had  taken  out 
letters  testamentary  in  Pennsylvania.  The  judge  charged  the  jury 
that  the  defendant  was  liable  as  executor  for  all  the  assets  he  still 
retained  in  his  hands,  or  had  expended  or  disposed  of  here,  unless  in 
the  due  course  of  administration,  whether  they  were  received  here  or 
brought  from  Pennsylvania.  That  his  appointment  as  executor  in  that 
State  would  not,  per  se,  protect  him;  but  he  must  show  also  that  the 
assets  received  by  him  there  and  here  had  been  disposed  of  under  that 
appointment,  or  in  the  payment  of  Booth's  debts  in  this  State.  Having 
failed  to  do  either,  he  was  liable  as  executor,  de  son  tort,  to  the  amount 
of  the  plaintiff's  claim,  if  the  assets  in  his  hands  amounted  to  so  much. 
Verdict  for  the  plaintiff  for  $94.42.^ 

Sutherland,  J.  The  testator  resided  and  died  in  Pennsylvania,  and 
there  the  will  was  proved.  The  defendant  received  assets  of  the  estate 
in  Pennsylvania,  and  brought  them  with  him  into  this  State.  He  also 
in  this  State  received  debts  due  to  the  testator  to  a  considerable 
amount.  The  judge  charged  the  jury  that  the  defendant  was  liable 
for  all  the  assets  which  he  still  retained  in  his  hands,  or  which  he 
had  expended  or  disposed  of  in  this  State,  unless  in  the  due  course 
of  administration,  whether  they  were  received  in  this  State  or  originally 
received  in  Pennsylvania  and  brought  from  there  here.     That  the  fact 

1  Tho  statement  of  facts  is  slightly  condensed.  Arguments  of  counsel  and  part  of 
the  opinion  are  omitted.  —  Ed. 


CHAP.  Xm.J  JUDY   V.    KELLEY.  635 

of  his  having  been  appointed  executor  in  Pennsylvania  would  not  of 
itself  protect  him  here  ;  but  that  it  was  incumbent  on  him  to  show  that 
the  assets  which  he  had  received  in  Pennsylvania  and  brouglit  into  this 
State,  as  well  as  those  which  he  had  received  here,  had  been  disposed 
of  in  a  due  course  of  administration  in  Pennsylvania,  or  in  the  pay- 
ment of  the  debts  of  the  testator  in  this  State.  That  having  failed  to 
do  either,  he  was  liable  as  executor  de  son  tort  to  the  amount  of  those 
assets. 

We  see  no  error  in  this  charge  of  the  judge.  If  a  foreign  executor 
is  liable  to  be  sued  here,  of  which  we  apprehend  there  can  be  no  ques- 
tion, he  must,  from  the  very  nature  of  the  case,  prima  facie,  be  re- 
sponsible for  the  assets  which  are  shown  to  have  been  in  his  possession 
within  this  State,  no  matter  where  they  ma}"  have  been  received.  And 
in  order  to  discharge  himself  from  that  responsibilit}',  he  must  show 
that  those  assets  have  been  applied  in  a  due  course  of  administration 
to  the  pa3-ment  Of  the  debts  of  the  testator.  It  is  the  onl}'  wa}'  in  which 
an  executor,  under  such  circumstances,  can  be  reached.  He  cannot  be 
compelled  to  account  here,  even  in  relation  to  the  assets  received  in 
this  State  ;  for  having  taken  no  letters  of  administration  here,  he  is  not 
amenable  in  that  way  to  an}'  of  our  courts.  He  cannot  be  reached  in 
Pennsylvania,  because  both  his  person  and  the  assets  are  beyond  its 
jurisdiction  ;  and  if  he  is  not  liable  when  sued  here  for  the  assets 
received  there,  he  never  can  be  compelled  to  apply  them  to  the  debts 
of  his  testator.   .  .   . 

The  defendant  was  clearly  an  executor  de  son  tort,  and  the  action 
was  properly  brought  against  him  as  executor  generally.  Com.  Dig. 
Administrator,  C.  1,  2,  3  ;  Toller's  Ex.,  17,  369. 

It  is  well  settled  that  if  an  executor  de  son  tort  plead  ne  nnques 
executor,  as  was  done  in  this  case,  and  it  be  found  against  him,  he 
shall  be  charged  as  any  other  executor,  de  bonis propriis.     Toller,  369. 

The  motion  for  a  new  trial  must  be  denied. 


New  trial  denied. 


JUDY  V.  KELLEY. 
Supreme  Court,  Illinois.     1849. 

[Reported  11  Illinois,  211.] 

Treat,  C.  J.-  This  is  an  action  of  debt,  on  a  judgment  recovered 
in  the  State  of  Ohio  by  Kelley,  against  the  administrators  of  William 
Alliugton.     It  appears  from  the  record  of  the  proceedings  in  Ohio  that 

1  Statute  having  done  away  with  executors  de  son  tort,  it  was  held  that  a  foreign 
executor  found  in  New  York  with  assets  could  not  be  sued.  Field  v.  Gibson,  20  Hun, 
274.  — Ed. 

2  Part  of  the  opinion,  discussing  other  questions,  is  omitted.  —  Ed. 


636  JUDY   V.    KELLEY.  [CHAP.  XIII. 

the  suit  was  there  brought  against  Allington  in  his  lifetime,  and  set 
vice  of  process  had  on  him.  At  a  succeeding  term,  the  plaintiff  sug- 
gested the  death  of  Allington,  and  obtained  leave  to  revive  the  suit, 
against  his  personal  representatives.  At  a  subsequent  term,  the  present 
plaintiff's  in  error  entered  their  appearance,  and  pleaded  to  the  action 
as  administrators  of  Allington  ;  and  a  trial  of  the  cause  resulted  in  the 
judgment  now  the  subject  of  controversy.  The  presumption  from  that 
record  is,  that  the  plaintiffs  in  error  obtained  letters  of  administration 
on  the  estate  of  Allington  in  Ohio.  To  repel  this  presumption,  the 
second  plea  alleges  that  they  were  appointed  administrators  in  this 
State,  and  that  administration  was  never  granted  them  elsewhere. 
This  presents  the  question  whether  a  judgment  recovered  in  another 
State  against  an  administrator  appointed  in  this  State  can  be  here 
enforced  against  the  estate.  A  grant  of  administration  in  one  country 
does  not  confer  on  an  administrator  any  title  to  the  property  of  the 
intestate  situated  in  another  country.  He  has  no  authority  over,  nor 
is  he  responsible  for  any  effects  of,  the  estate  that  may  be  beyond  the 
jurisdiction.  In  administering  the  estate,  he  acts  only  in  reference  to 
the  effects  within  the  jurisdiction,  and  the  debts  that  may  there  be  pre- 
sented against  the  estate.  In  his  official  capacity-,  he  can  neither  sue 
nor  be  sued  out  of  the  countr}'  from  which  he  derives  his  authority, 
and  to  which  he  is  alone  amenable.  If  he  wishes  to  reach  property,  or 
collect  debts  belonging  to  the  estate  in  a  foreign  country,  he  must  there 
obtain  letters  of  administration,  and  give  such  security  and  become 
subject  to  such  regulations  as  its  laws  may  prescribe.  So,  if  a  creditor 
wishes  to  bring  a  suit  in  order  to  satisfy  his  del)t  out  of  j)roperty 
in  another  jurisdiction,  administration  must  there  be  first  obtained. 
See  Stor3''s  Conflict  of  Laws,  §  513,  and  the  numerous  authorities 
there  cited.  There  are  a  few  cases  in  this  country  to  the  effect  tiiat  a 
foreign  executor  may  be  sued  in  anotlier  jurisdiction,  and  be  tliere 
made  liable  to  the  extent  of  the  assets  he  ma}-  iiave  with  him  ;  but  the 
cases  go  no  farther  than  to  sustain  the  action  for  the  purpose  of  sub- 
jecting such  assets  to  the  payment  of  the  particular  debt.  Campbell  v. 
Tousey,  7  Cow.  64  ;  Swearingen's  Ex'rs  r.  Pendleton's  Ex'rs,  4  Serg. 
&  R.  389  ;  Evans  v.  Tatem,  9  Serg.  &  R.  252  ;  Bryan  v.  McGee, 
2  Wash.  C.  C.  R.  337.  It  may  be  doubted  whether  these  decisions 
can  be  supported  on  principle  or  anthority  ;  but  conceding  their  cor- 
rectness, they  have  no  direct  bearing  on  this  case.  The  attempt  here 
is  to  enforce  against  an  estate  a  judgment  rendered  in  Ohio  against 
administrators  appoitiied  in  this  State.  It  is  clear  that  the  State  of 
Ohio  could  not  rightfully  extend  her  jurisdiction  over  the  plaintiffs  in 
error,  in  their  official  character,  while  within  her  limits,  further  than  to 
compel  them  to  account  for  such  assets  as  they  might  there  have.  The 
plaintiffs  in  error  derived  their  authority"  from  this  State,  and  tliey  are 
to  be  made  responsible  here  only  for  their  acts.  That  State  may  grant 
letters  of  administration  on  the  estate,  and  in  that  way  have  the  effects 
found  v/ithiu  her  territory  administered;    but  she  cannot,  by  proceed- 


CHAP.  XIII.]  JUDY   V.    KELLEY.  637 

ings  in  her  own  courts,  reach  the  assets  in  this  State,  or  establish 
claims  against  the  estate  that  will  here  be  enforced.  The  debts  against 
the  estate  are  to  be  adjusted,  and  the  effects  belonging  to  it  distributed, 
according  to  our  own  laws. 

But  it  is  insisted  that  the  plaintiffs  in  error,  by  entering  their  ap- 
pearance to  the  action  in  Ohio,  submitted  themselves  to  the  jurisdiction 
of  the  court,  and  cannot  now  question  its  authorit}'  to  pronounce  the 
judgment.  This  position  would  be  correct  if  the  proceedings  there  had 
been  against  them  personally  ;  but  as  respects  them  in  their  represen- 
tative capacity',  we  think  the  eft'ect  is  otherwise.  The  grant  of  admin- 
istration in  this  State  gave  them  no  control  over  the  estate  in  Ohio. 
It  did  not  confer  on  them  any  authority  to  appear  and  defend  the 
action  ;  an}'  power  to  go  into  another  jurisdiction,  and  there  permit 
claims  to  be  adjudicated  against  the  estate.  Their  authority  is  limited, 
and  when  the}'  exceed  it  their  acts  will  not  bind  the  estate.  The  ap- 
pearance being  wholly  unauthorized  by  our  laws,  the  judgment  that 
resulted  from  it  is  not  binding  on  the  estate.  If  binding  here,  for  any 
purpose,  it  is  against  the  plaintiffs  in  error  personally.  If  the  judg- 
ment had  been  obtained  against  an  administrator  duly  appointed  in 
Ohio,  the  record  would  not  be  evidence  of  indebtedness,  in  an  action 
against  the  administrators,  in  this  State.  "  Where  administrations  are 
granted  to  different  persons  in  different  States,  they  are  so  far  regarded 
as  independent  of  each  other  that  a  judgment  obtained  against  one  will 
furnish  no  right  of  action  against  the  other,  to  affect  assets  received 
by  the  latter,  in  virtue  of  his  own  administration  ;  for,  in  contempla- 
tion of  law,  there  is  no  privity  between  him  and  the  other  adminis- 
trator."'    Story's  Conflict  of  Laws,  §  522. 

We  are  of  the  opinion  that  the  judgment,  if  the  allegations  of  the 
plea  are  true,  cannot  be  liere  enforced  against  the  estate.  The  demand 
against  the  intestate  has  not  been  adjusted  in  pursuance  of  our  laws, 
but  in  defiance  of  them.  If  the  creditor  wishes  to  secure  any  share  of 
the  assets  in  this  State,  he  must  sue  on  his  original  cause  of  action. 
This  conclusion  is  not  in  conflict  with  the  case  of  Davis  v.  Connelly's 
Ex'rs,  4  B.  Mon.  136.  That  was  an  action  brought  in  Kentucky  against 
executors  appointed  in  that  State,  on  a  judgment  obtained  against 
them  in  Ohio.  The  executors  pleaded  that  they  had  never  adminis- 
tered in  Ohio ;  and  the  plaintiff  replied  that  the  defendants,  acting  as 
executors  and  professing  to  be  such,  entered  their  appearance  in  the 
original  action,  and  thereby  became  executors  de  son  tort,  and  are 
estopped  to  deny  that  they  were  executors  in  Ohio.  The  court  sus- 
tained the  replication,  and  decided  that  the  defendants  were  chargeable 
as  executors  in  their  own  wrong.  In  this  case  the  plaintiffs  in  error 
are  not  sued  as  executors  de  son  tort;  but  the  object  of  the  suit  is 
to  enforce  the  judgment  against  the  estate,  and  satisfy  it  out  of  the 
assets.  .  .  .  Judgment  reversed} 

1  In  most  jurisdictions  it  is  held  that  a  foreign  executor  or  administrator  cannot  be 
sued  as  such  under  any  circumstances,  eveu  if  he  resides  in  tlie  State  or  is  found  there 


638  •  JOHNSON   v..    WALLIS.  [CHAP.  XIIT. 

JOHNSON  V.  WALLIS. 

Court  of  Appeals,  Xew  York.     1889. 

[Reported  112  Nciv  York,  230.] 

•Finch,  J.^  This  is  an  action  in  equit}-  to  compel  the  specific  per- 
formance by  the  vendors  of  a  contract  to  sell  and  assign  a  judgment 
recovered  by  John  McAnerney  and  others,  in  the  Supreme  Court  of 
this  State,  against  a  corporation  known  as  the  Hudson  River  Iron 
Compan}'.  The  judgment  was  assigned  to  one  Alexander  H.  Wallis, 
who  was  a  resident  of  New  Jersey,  and  died  leaving  a  last  will  and 
testament,  which  has  been  duly  proved  in  that  State,  and  by  which  the 
defendants  were  appointed  executors.  They  have  qualified,  and  en- 
tered upon  the  performance  of  their  trust.  They  thereafter  made  a 
written  contract  with  one  Jacob  Russell,  all  whose  rights  have  passed 
to  the  present  plaintiff,  to  sell  and  assign  to  him  such  judgment  for 
a  price  to  be  fixed  as  follows.  The  judgment  was  a  lien,  or  supposed 
to  be  a  lien,  upon  certain  lands  under  the  waters  of  the  Hudson 
River,  near  Poughkeepsie,  in  this   State,  and   had  no  value  beyond 

with  assets.  Caldwell  v.  Harding,  5  Blatcli.  501;  Security  Ins.  Co.  v.  Taylor,  2  Biss. 
446  ;  Melius  v.  Thompson,  1  Cliff.  125 ;  Hedenberg  v.  Hedenberg,  46  Conn.  30  ;  Jack- 
son  V.  Johnson,  34  Ga.  511  ;  Strauss  v.  Phillips,  189  111.  1,  59  N.  E.  560  ;  Mason  v. 
Nutt,  19  La.  Ann.  41  ;  Campbell  v.  Sheldon,  13  Pick.  8  ;  Boyd  v.  Lambeth,  24  Miss. 
433  ;  Durie  v.  Blauvelt,  49  N.  J.  L.  114  ;  Ferguson  v.  Harrison,  29  N.  r .  Misc.  380, 
58  N.  Y.  Supp.  850  ;  Sparks  v.  Wliite,  7  Humph.  86  ;  Dorsay  v.  Connell,  22  N.  B. 
564.  And  this  is  true,  even  though  by  statute  a  foreign  representative  may  sue.  Fair- 
child  V.  Hagel,  54  Ark.  61 ;  Sloan  v.  Sloan,  21  Fla.  589.  And  even  though  the  ad- 
ministrator consents  to  be  sued  in  the  foreign  State.  Jefferson  v.  Beall,  117  Ala.  436, 
23  So.  44  ;  Elting  v.  First  Nat.  Bank,  173  111.  368,  50  N.  E.  1095  ;  Fiandrow  v.  Ham- 
mond, 13  App.  Div.  325,  43  N.  Y.  Supp.  143.  It  is  therefore  no  devastavit  for  an 
administrator,  when  sued  in  a  foreign  State,  to  suffer  default.  Davis  v.  Smith,  5  Ga. 
274. 

In  a  few  States,  however,  a  foreign  representative  may  under  some  circumstances 
be  sued  as  such.  Thus  it  is  sometimes  held  that  an  administrator  who  has  come  to 
reside  within  a  foreign  State  may  be  sued  there.  Colbert  v.  Daniel,  32  Ala.  31 4 ; 
Manion  v.  Titsworth,  18  B.  Mon.  582  ;  Baker  v.  Smith,  3  Met.  (Ky.)  264.  In  other 
States  it  is  held  that  if  an  administrator  is  found  in  a  foreign  State  liaving  assets,  he 
may  be  sued  there.  Laughlin  v.  Solomon,  180  Pa.  181,  36  Atl.  704;  Tunstall  v.  Pol- 
lard, 11  Leigh,  1  ;  Fugate  v.  Moore,  86  Va.  104.'>,  11  S.  E.  1063.  And  a  few  cases 
appear  to  hold  that  suit  may  be  brought  against  any  foreign  administrator  upon  whom 
process  may  be  served.  Evans  r.  Tatem,  9  S.  &  R.  252;  Armstrong  !'.  Newey,  17 
Vict.  L.  R.  734.  It  is  sometimes  held  that  suit  may  be  brought  against  a  foreign 
representative  if  all  parties  in  interest  consent.  Newark  Sav.  Inst.  v.  Jones,  35  N.  J. 
E(i.  406;  Ellis  v.  Northwestern  Mut.  L.  Ins.  Co.,  100  Tenn.  177,  43  S.W.  766. 

Where  a  foreign  executor  or  administrator  holds  adversely  within  the  State  assets 
of  the  estate,  he  may  be  made  to  account  in  enuity  as  constructive  trustee.  Cloyiton  v. 
Booker,  27  Ark.  482;  Johnson  v.  Jackson,  56  Ga.  326  ;  Patton  v.  Overton,  8  Humph. 
92.  —  Ed. 

1  Part  of  the  opinion,  discussing  the  correctness  of  the  arbitrators'  valuation,  is 
omitted.  —  Ed. 


CHAP.  XIII.]  TALMAGE    V.    CHAPEL.  639 

such  li&n.  Arbitrators  were  chosen  to  fix  the  value  of  one  acre  of 
the  upland,  and  that  value,  multiplied  by  the  number  of  acres  subject 
to  the  lien,  was  to  be  the  purchase-price  of  the  judgment.  That  value 
was  ascertained,  the  price  tendered,  and  a  deed  duly  demanded,  which 
was  refused,  and  thereupon  this  action  was  brought.  The  plaintiff 
had  judgment  which  the  General  Term  affirmed,  and  the  defendants 
appealed  to  this  court. 

They  rely  mainly  upon  the  proposition  that  as  foreign  executors 
the}'  could  not  sue  or  be  sued  in  this  State,  and  acquire  all  their 
rights  from  and  owe  their  responsibilities  to  another  jurisdiction. 
That  is  the  general  rule,  but  in  this  State  at  least  is  confined  to  claims 
and  liabilities  resting  wholly  upon  the  representative  character.  In 
Lawrence  v.  Lawrence  (3  Barb.  Ch.  74),  the  rule  was  declared  to  be 
applicable  only  to  suits  brought  upon  debts  due  to  the  testator  in  his 
lifetime  or  based  upon  some  transaction  with  him,  and  does  not 
prevent  a  foreign  executor  from  suing  in  our  courts  upon  a  contract 
made  with  him  as  such  executor.  Of  course  where  he  can  sue  upon 
such  a  contract  he  may  be  sued  upon  it.  The  remed}-  must  run  to  each 
part}'  or  neither.  In  the  present  case  the  action  is  not  founded  upon 
any  transaction  with  the  deceased  but  upon  a  contract  which  the  de- 
fendants themselves  made.  By  force  of  the  will  and  their  appoint- 
ment they  became  owners  of  the  judgment.  Their  title,  although 
acquired  under  the  foreign  law,  was  good.  In  Peterson  v.  Chemical 
Bank  (32  N.  Y.  21)  the  foreign  executor  sold  an  obligation  of  the  estate 
and  his  assignee  sued  upon  it.  The  action  was  sustained  on  the  ground 
that  the  title  of  tlie  foreign  executor  was  good  and  he  could  transfer  it, 
and  while  he  could  not  have  sued  upon  it  his  assignee  was  not  pre- 
vented. In  this  case,  therefore,  the  defendants  were  owners  of  the 
judgment  and  could  lawfully  contract  for  its  sale.  Having  done  so 
they  were  liable  upon  that  contract,  which  could  be  enforced  against 
them  because  they  made  it,  and  it  did  not  derive  its  existence  from  any 
act  or  dealing  of  their  testator.  We  agree,  therefore,  with  the  courts 
below  that  the  action  could  he  maintained.  .  .  . 

The  judgment  should  be  aflJrmed,  with  costs. 

All  concur.  Judgment  affirmed.^ 


TALMAGE  v.  CHAPEL. 

Supreme  Judicial  Court  of   Massachusetts.     1819. 

[Reported  16  Massachusetts,  71.] 

The  plaintiff  declares  as  administrator  of  the  estate  of  George 
Clinton,  in  debt  upon  a  judgment  recovered  by  him  in  his  said  capacity 

1  But  see  Marrett  v.  Babb  (Ky.),  15  S.  W.  4,  where  it  was  held  that  a  foreign  ex- 
ecutor could  uot  enforce  specific  performance  of  a  contract  made  by  him  on  behalf  of 
the  estate. 


640  JOHNSON    V.    POWKES.  [CHAP.  XIII. 

against  the  defendants,  in  the  Court  of  Common  Pleas  for  the  county 
of  Oneida,  in  the  State  of  New  York. 

The  defendants  plead  in  bar,  that  the  parties,  at  the  time  of  ren- 
dering the  said  judgment,  were  all  inhabitants  of  the  State  of  New 
York,  and  that  the  plaintiff  was  appointed  administrator  in  that  State, 
and  has  not  been  so  appointed  within  tliis  commonwealth.  To  which 
the  plaintiff  demurred,  and  the  defendants  joined  in  demurrer.^ 

CuuiA.  We  think  the  plea  in  bar  bad.  The  case  of  Goodwin  v. 
Jones  (5  Mass.  514),  cited  by  the  counsel  for  the  defendants,  does  not 
apply.  The  action  there  was  brought  for  money  due  to  the  intestate 
on  a  contract  made  with  him  ;  here  the  action  is  on  a  judgment  already 
recovered  by  the  plaintiff,  and  it  might  have  been  brought  by  him  in 
liis  own  name,  and  not  as  administrator.  For  the  debt  was  due  to 
him,  he  being  answerable  for  it  to  the  estate  of  the  intestate  ;  and  it 
ought  to  be  considered  as  so  brought,  his  style  of  administrator  being 
merelv  descriptive,  and  not  being  essential  to  his  riglit  to  recover.  It 
is  important  to  the  purposes  of  justice  tliat  it  should  be  so  ;  for  an 
administrator  appointed  here  could  not  maintain  an  action  upon  this 
judgment,  not  being  privy  to  it.  Nor  could  he  maintain  an  action  on 
the  original  contract ;  for  the  defendants  might  plead  in  bar  the  judg- 
ment recovered  against  them  in  New  York.  The  debt  sued  for  is  in 
truth  due  to  the  plaintiff  m  his  personal  capacity.  For  he  makes  him- 
self accountable  for  it  b}-  bringing  his  action  ;  and  he  may  well  declare 
that  the  debt  is  due  to  himself  There  are  many  cases  which  show 
ttiat,  where  the  debt  becomes  due  after  the  death  of  the  intestate,  the 
administrator  may  sue  for  it  in  his  own  name  ;  some  of  which  have 
been  cited  by  the  plaintiff's  counsel. 

Defendants^  plea  had? 


JOHNSON  V.  POWERS. 

Supreme  Court  of  the  United  States.     1891. 

[neporled  139  U-ntted  States,  156.] 

Gray,  J.  Tliis  is  a  bill  in  equity,  filed  in  the  Circuit  Court  of  the 
United   States  for  the  Northern  District  of  New  York,  by  George  K. 

1  Arguments  of  counsel  are  omitted.  —  Ed. 

2  Ace.  In  re  ]\IacnichQl,  L.  R.  19  Eq.  81  ;  Newberry  v.  Robiuson,  36  Fed.  841  ; 
Lewis  V.  Adams,  70  Cal.  403,  11  Pac.  833  ;  Barton  v.  Hig<,'ins,  41  Md.  539  ;  Paicks  v. 
Taylor,  49  Miss.  f)5'2  (semble)  ;  Tittman  v.  Thornton,  107  Mo.  500,  17  S.  W.  979. 
Qmtra  Morcfield  v.  Harris,  126  N.  C.  626,  36  S.  E.  125. 

So  an  administrator  de  bonis  non  may  sue  his  predecessor  in  a  foreign  State  for  the 
balance  found  by  his  own  court  to  be  due  from  liim.     Moore  v.  Fields,  42  Pa.  467. 

Similarly,  where  an  administrator  is  sued  and  gets  judgment  against  the  plaintiff 
for  costs,  he  may  sue  upon  the  judgment  in  another  Slate.  Green  t;.  Heritage,  63 
N.  J.  L.  455,  43  Atl.  698.  —  Ed. 


CHAP.  XIII.]  JOHNSON    V.   POWERS.  641 

Johnson,  a  citizen  of  Michigan,  in  behalf  of  himself  and  of  all  other 
persons  interested  in  the  administration  of  the  assets  of  Nelson  P. 
Stewart,  late  of  Detroit  in  the  county  of  Wa3-ne  and  State  of  Mich- 
iijan,  against  several  persons,  citizens  of  New  York,  alleged  to  hold 
real  estate  in  New  York  under  convej-ances  made  by  Stewart  in  fraud 
of  his  creditors. 

The  bill  is  founded  upon  the  jurisdiction  in  equit}^  of  the  Circuit 
Court  of  the  United  States,  independent  of  statutes  or  practice  in  any 
Slate,  to  administer,  as  between  citizens  of  different  States,  any  de- 
ceased person's  assets  within  its  jurisdiction.  Payne  v.  Hook,  7  Wall. 
425;  Kennedy  v.  Creswell,  101  U.  S.  641. 

At  the  threshold  of  the  case,  we  are  met  by  the  question  whether  the 
plaintiff  shows  such  an  interest  in  Stewart's  estate  as  to  be  entitled  to 
invoke  the  exercise  of  this  jurisdiction. 

He  seeks  to  maintain  his  bill,  both  as  administrator  and  as  a  cred- 
itor, in  behalf  of  himself  and  all  other  creditors  of  Stewart. 

The  only  evidence  that  he  was  either  administrator  or  creditor  is  a 
duly  certified  copy  of  a  record  of  the  probate  court  of  the  county  of 
Wayne  and  State  of  Michigan,  showing  his  appointment  by  that  court 
as  admininistrator  of  Stewart's  estate  ;  the  subsequent  appointment  by 
that  court,  pursuant  to  the  statutes  of  Michigan,  of  commissioners  to 
receive,  examine,  and  adjust  all  claims  of  creditors  against  the  estate  ; 
and  the  report  of  those  commissioners,  allowing  several  claims,  includ- 
ing one  to  this  plaintiff,  ''  George  K.  Johnson,  for  judgments  against 
claimant  in  Wayne  Circuit  Court  as  endorser,"  and  naming  him  as 
administrator  as  the  party  objecting  to  the  allowance  of  all  the  claims. 

The  plaintiff  certainly  cannot  maintain  this  bill  as  administrator  of 
Stewart,  even  if  the  bill  can  be  construed  as  framed  in  that  aspect ;  be- 
cause he  admits  that  he  has  never  taken  out  letters  of  administration  in 
New  York  ;  and  the  letters  of  administration  granted  to  him  in  Mich- 
igan confer  no  power  beyond  the  limits  of  that  State,  and  cannot 
authorize  him  to  maintain  any  suit  in  the  courts,  either  State  or  national, 
held  in  any  other  State.  Stacy  v.  Thrasher,  6  How.  44,  58 ;  Noouan 
V.  Bradley ,*^  9  Wall.  394.1 

1  The  foreign  representative  of  a  deceased  creditor  (whether  executor  or  adminis- 
trator) cannot  sue  on  the  claim  of  the  deceased.  Tourton  v.  Flower,  3  P.  Wms.  369  ; 
Allen  V.  Fairbanks,  36  Fed.  402  ;  Lewis  v.  Adams  (Cal.),  8  Pac.  619  ;  Hobart  v.  Turn- 
pike  Co.,  15  Conn.  145  :  Navlor  v.  Moody,  2  Blackf.  247;  Gregory  v.  McCormick, 
120  Mo.  657,  25  S.  W.  565  {semble)  :  Butfs  i-.  Price,  C.  &  N.  68  ;  Chapman  v.  Fish, 
6  Hill,  554  ;  Graeme  v.  Harris,  1  Dall.  456  ;  Dodge  v.  Wetmore,  Brayt.  92  ;  Dickinson 
/.  M'Craw,  4  Rand.  158.  Thus  an  administrator  appointed  in  Maryland  before  the 
session  of  the  District  of  Columbia  to  the  United  States  cannot  sue  in  the  District 
after  cession.  Fenwick  v.  Sears,  1  Cr.  259.  If  a  foreign  administrator  sues  in  Massa- 
chusettsand  is  allowed  to  recover  judgment,  which  is  satisfied,  suit  by  a  Massachusetts 
administrator,   subsequently  appointed,   is  not  barred.     Pond  v.  Makepeace,  2    Met. 

114.  .  .    , 

So  a  forei^  executor  or  administrator  cannot  bring  a  bill  of  revivor  in  a  suit  befran 
by  the  deceased  before  his  death.     Barclift  v.  Treece,  77  Ala.  528  ;  Greer  .;.  Ferguson, 
^  41 


642 


JOHNSON   V.   POWERS.  [CHAP.  XIII. 


The  question  remains  whether,  as  against  these  defendants,  the 
plaintiff  has  proved  himself  to  be  a  creditor  of  Stewart.  The  only 
evidence  on  this  point,  as  already  observed,  is  the  record  of  the  pro- 
ceedino-s  before  commissioners  appointed  by  the  Probate  Court  in 
Michio-an.  It  becomes  necessary  therefore  to  consider  the  nature  and 
the  effect  of  those  proceedings. 

Thev  were  bad  under  the  provisions  of  the  General  Statutes  of  Mich- 
igan (2  Howell's  Statutes,  §§  5888-5906),  "  the  general  idea  "  of  which 
as  stated  by  Judge  Cooley,  "is  that  all  claims  against  the  estates  of 
deceased  persons  shall  be  duly  proved  before  commissioners  appointed 
to  hear  them,  or  before  the  Probate  Court  when  no  commissioners  are 
appointed.  The  commissioners  act  judicially  in  the  allowance  of 
claims,  and  the  administrator  cannot  bind  the  estate  by  admitting  their 
correctness,  but  must  leave  them  to  be  proved  in  the  usual  mode." 
Clark  V.  Davis,  32  Mich.  154,  157.  The  commissioners,  when  once 
appointed,  become  a  special  tribunal,  which,  for  most  purposes,  is 
independent  of  the  Probate  Court,  and  from  which  either  party  may 
appeal  to  the  Circuit  Court  of  the  county  ;  and,  as  against  an  adverse 
claimant,  the  administrator,  general  or  special,  represents  the  estate, 
both  before  the  commissioners  and  upon  the  appeal.  2  Howell's  Stat- 
utes, §§  5907-5917;  Lothrop  v.  Conely,  39  Mich.  757.  The  de- 
cision of  the  commissioners,  or  of  tlie  Circuit  Court  on  appeal,  should 
properly  be  only  an  allowance  or  disallowance  of  the  claim,  and  not  in 
the  form  of  a  judgment  at  common  law.  La  Roe  v.  Freeland,  8  Mich. 
530.  But,  as  between  the  parties  to  the  controversy,  and  as  to  the 
payment  of  the  claim  out  of  the  estate  in  the  control  of  the  Probate 
Court,  it  has  the  effect  of  a  judgment,  and  cannot  be  collaterally  im- 
peached l)y  either  of  those  parties.    Shurbun  v.  Hooper,  40  Mich.  503. 

Those  statutes  provide  that  when  the  administrator  declines  to  ap- 
peal from  a  decision  of  the  commissioners,  any  person  interested  in 
the  estate  may  appeal  from  that  decision  to  the  Circuit  Court ;  and  that, 
when  a  claim  of  the  administrator  against  the  estate  is  disallowed  by 
the  commissioners  and  he  appeals,  he  shall  give  notice  of  his  appeal 
to  all  concerned  by  personal  service  or  by  publication.  2  Howell's  Stat- 
utes, §§  591 G,  5917.  It  may  well  be  doubted  whether,  within  the 
spirit  and  intent  of  these  provisions,  the  administrator,  when  he  is  also 
the  claimant,  is  not  bound  to  give  notice  to  other  persons  interested  in 
the  estate,  in  order  that  they  may  have  an  opportunity  to  contest  his 
claim  before  the  commissioners  ;  and  whether  an  allowance  of  his  claim, 
as  in  this  case,  in  the  absence  of  any  impartial  representative  of  the 

56  Ark.  324  ;  Goodwin  v.  Jones,  3  Mass.  514.     And  therefore  a  foreign  executor  may 
not  dismiss  a  suit  begun  by  his  testator.     Warren  v.  Eddy,  13  Abb.  Pr.  28. 

In  Michigan  it  has  been  held  that  a  foreign  e.vecutor  may  bring  and  maintain  a  suit 
npon  a  claim  of  the  testator,  provided  he  obtains  letters  of  administration  in  Mich- 
igan  before  trial.  Gray  v.  Franks,  86  Mich.  382,  49  N.  W.  130.  See  also  Hodges  v. 
Kimball,  91  Fed.  845.  In  .several  States  a  foreign  executor  is  allowed  to  sue  by  statute. 
Lawrence  t;.  Nelson,  143  U.  S.  215;  Bell  v.  Nichols,  38  Ala.  678.  —  Ed. 


CHAP.   XIII.]  JOHNSON    V,   POWERS.  643 

estate,  and  of  other  persons  interested  therein,  can  be  of  any  binding 
effect,  even  in  Michigan.     See  Lothrop  v.  Conely,  above  cited. 

But  we  need  not  decide  that  point,  because  upon  broader  grounds  it 
is  quite  clear  that  those  proceedings  are  incompetent  evidence,  in  this 
suit  and  against  these  defendants,  that  the  plaintiff  is  a  creditor  of 
Stevrart  or  of  his  estate. 

A  judgment  in  rem  binds  only  the  property  within  the  control  of  the 
court  which  rendered  it;  and  a  judgment  in  personam  binds  only  the 
parties  to  that  judgment  and  those  in  privity  with  them. 

A  judgment  recovered  against  the  administrator  of  a  deceased  per- 
son in  one  State  is  no  evidence  of  debt,  in  a  subsequent  suit  by  the 
same  plaintiff  in  another  State,  either  against  an  administrator,  whether 
the  same  or  a  different  person,  appointed  there,  or  against  any  other 
person  having  assets  of  the  deceased.  Aspden  v.  Nixon,  4  How.  467  ; 
Stacy  V.  Thrasher,  6  How.  44;  McLean  v.  Meek,  18  How.  16  ;  Low 
V.  Bartlett,  8  Allen,  259. 

In  Stacy  v.  Thrasher,  in  which  a  judgment,  recovered  in  one  State 
against  an  administrator  appointed  in  that  State,  upon  an  alleged  debt 
of  the  intestate,  was  held  to  be  incompetent  evidence  of  the  debt  in 
a  suit  brought  by  the  same  plaintiff  in  the  Circuit  Court  of  the 
United  States  held  within  another  State  against  an  administrator  there 
appointed  of  the  same  intestate,  the  reasons  given  by  Mr.  Justice 
Grier  have  so  strong  a  bearing  on  the  case  before  us,  and  on  the  argu- 
ment of  the  appellant,  as  to  be  worth  quoting  from  :  — 

"  The  administrator  receives  his  autlioritj-  from  the  ordinary,  or 
other  officer  of  the  government  where  the  goods  of  the  intestate  are  sit- 
uate. But  coming  into  such  possession  by  succession  to  the  intestate, 
and  encumbered  with  the  (\\xt\  to  pa}-  his  debts,  he  is  considered  in  law 
as  in  privity  with  him,  and  therefore  bound  or  estopped  by  a  judgment 
against  liim.  Yet  his  representation  of  his  intestate  is  a  qualified  one, 
and  extends  not  I^eyond  the  assets  of  which  the  ordinary  had  jurisdic- 
tion."    6  How.  58. 

In  answering  the  objection  that  to  applj-  these  principles  to  a  judg- 
ment obtained  in  another  State  of  the  Union  would  be  to  den}-  it  the 
faith  and  credit,  and  the  effect,  to  which  it  was  entitled  by  the  Consti- 
tution and  laws  of  the  United  States,  he  observed  that  it  was  evidence, 
and  conclusive  by  way  of  estoppel  only  between  the  same  parties,  or 
their  privies,  or  on  the  same  subject-matter  when  the  proceeding  was 
in  rem  ;  and  that  the  parties  to  the  judgments  in  question  were  not  the 
same  ;  neither  were  they  privies,  in  blood,  in  law,  or  by  estate  ;  and 
proceeded  as  follows  : 

"An  administrator  under  grant  of  administration  in  one  State 
stands  in  none  of  these  relations  to  an  administrator  in  another. 
Each  is  privy  to  the  testator,  and  would  be  estopped  by  a  judgment 
against  him  ;  but  they  have  no  privity  with  each  other,  in  law  or  in 
estate.  They  receive  their  authority  from  different  sovereignties,  and 
over  different  property.     The   authority  of  each  is  paramount  to  the 


544  JOHNSON    V.    POWERS.  [CHAP.  XIII. 

Other.  Each  is  accountable  to  the  ordinar}-  from  whom  he  receives  his 
authority.  Nor  does  the  one  come  by  succession  to  the  other  into 
the  trust  of  the  same  property,  encumbered  by  the  same  debts." 
6  How.  59,   60. 

"  It  is  for  those  wlio  assert  this  privity  to  show  wherein  it  lies,  ana 
the  argument  for  it  seems  to  be  this :  That  the  judgment  against  the 
administrator  is  against  the  estate  of  the  intestate,  and  that  his  estate, 
wheresoever  situate,  is  liable  to  pay  his  debts  ;  therefore  the  plaintiff, 
having  once  established  his  claim  against  the  estate  by  the  judgment  of 
a  court,  should  not  be  called  on  to  make  proof  of  it  again.  This  argu- 
ment assumes  that  the  judgment  is  in  rem,  and  not  in  personam^  or 
that  the  estate  has  a  sort  of  corporate  entity  and  unity.  But  t-his  is 
not  true,  either  in  fact  or  in  legal  construction.  The  judgment  is 
against  the  person  of  the  administrator,  that  he  shall  pay  the  debt  of 
the  intestate  out  of  the  funds  committed  to  his  care.  If  there  be  another 
administrator  in  another  State,  liable  to  pay  the  same  debt,  he  may  be 
subjected  to  a  like  judgment  upon  the  same  demand,  but  the  assets  in 
his  hands  cannot  be  affected  by  a  judgment  to  which  he  is  personally  a 
stranger."  "  The  laws  and  courts  of  a  State  can  only  affect  persons 
and  things  within  their  jurisdiction.  Consequently,  both  as  to  the  ad- 
ministrator and  the  property  confided  to  him,  a  judgment  in  another 
State  is  res  inter  alios  acta.  It  cannot  be  even  prima  facie  evidence 
of  a  debt;  for  if  it  have  any  effect  at  all,  it  must  be  as  a  judgment, 
and  operate  by  way  of  estoppel."     6  How.  60,  61. 

In  Low  V.  Bartlett,  above  cited,  following  the  decisions  of  this  court, 
it  was  held  that  a  judgment  allowing  a  claim  against  the  estate  of  a 
deceased  person  in  Vermont,  under  statutes  similar  to  those  of  Mich- 
igan, was  not  competent  evidence  of  debt  in  a  suit  in  equity  brought 
in  Massachusetts  by  the  same  plaintiff  against  an  executor  appointed 
there,  and  against  legatees  who  had  received  money  from  him  ;  the 
court  saying  :  "  The  judgment  in  Vermont  was  in  no  sense  a  judgment 
against  them,  nor  against  the  property  which  they  had  received  from 
the  executor."     8  Allen,  266. 

In  the  case  at  bar,  the  allowance  of  Johnson's  claim  by  the  commis- 
sioners appointed  by  the  Probate  Court  in  Michigan,  giving  it  the  utmost 
possible  effect,  faith,  and  credit,  yet,  if  considered  as  a  judgment  in  rem, 
bound  only  the  assets  within  the  jurisdiction  of  that  court,  and,  con- 
sidered as  a  judgment  inter  jxtrfes,  bound  only  the  parties  to  it  and 
their  privies.  It  was  not  a  judgment  against  Stewart  in  his  lifetime, 
nor  against  his  estate  wherever  it  might  be ;  but  only  against  his  assets 
and  his  administrator  in  Michigan.  The  only  parties  to  the  decision 
of  the  commissioners  were  Johnson,  in  his  personal  capacity,  as  claim- 
ant, and  Johnson,  in  his  representative  capacity,  as  administrator  of 
those  assets,  as  defendant.  The  present  defendants  were  not  par- 
ties to  that  judgment,  nor  in  privity  with  Johnson  in  either  capacity. 
If  any  other  claimant  in  those  proceedings  had  been  the  plaintiff  here, 
the  allowance  of  his  claim  in  Michigan  would  have  been   no  evidence 


CHAP.  XIII.]  VANQUELIN    V.    BOUAIID.  645 

of  any  debt  due  to  him  from  the  deceased,  in  this  suit  brought  in  New 
York  to  recover  alleged  property  of  the  deceased  in  New  York  from 
third  persons,  none  of  whom  were  parties  to  those  proceedings  or  in 
privity  with  either  party  to  tliera.  The  fact  that  this  plaintiff  was  him- 
self the  only  party  on  both  sides  of  those  proceedings  cannot,  to  say 
the  least,  give  the  decision  therein  any  greater  effect  against  these 
defendants. 

The  obiection  is  not  that  the  plaintiff  cannot  maintain  this  bill  without 
first  recovering  judgment  on  his  debt  in  New  York,  but  that  there  is  no 
evidence  whatever  of  his  debt  except  the  judgment  in  Michigan,  and 
that  that  judgment,  being  res  inter  alios  acta,  is  not  competent  evi- 
dence against  these  defendants. 

This  objection  being  fatal  to  the  maintenance  of  this  bill,  there  is  no 
occasion  to  consider  the  other  questions,  of  law  or  of  fact,  mentioned 
in  the  opinion  of  the  Circuit  Court  and  discussed  at  bar. 

Decree  affirmed.^ 

Beown,  J.,  dissenting.2 


VANQUELIN  v.  BOUARD. 
Common  Pleas.     1863. 

[Heported  15  Common  Bench,  New  Series,  341. J 

Erle,  C.  J.'  —  Upon  the  argument  of  these  demurrers,  several  ques- 
tions have  been  raised  with  reference  to  the  French  law.     The  founda- 

1  Ace.  Taylor  i'.  Brown,  35  N.  H.  484.  And  so  a  Massachusetts  executor  cannot 
prove  in  the  Massachusetts  Probate  Court  a  balance  allowed  him  on  an  accounting  as 
ancillary  administrator  in  a  foreign  court.     Ela  v.  Edwards,  13  All.  48. 

So  generally  a  judgment  obtained  in  one  State  against  the  representative  of  the 
deceased  there  appointed  will  not  be  recognized  in  another  State  in  a  suit  against  the 
representative  there.  Aspden  v.  Nixon,  4  How.  467  ;  McLean  v.  Meek,  18  How.  16  ; 
Dent  V.  Ashley,  Hemph.  54  ;  Arizona  Cattle  Co.  v.  Huber  (Ari.),  33  Pac.  555;  Turner 
V.  Risor,  54  Ark.  33  ;  Lewis  v.  Adams,  70  Cal.  403,  11  Pac.  833;  McGarvey  v.  Dar- 
nall,  134  111.  367,  25  N  .E.  1005  ;  Creswell  v.  Slack,  68  la.  110  ;  Low  v.  Bartlett,  8  AIL 
259;  Braithwaite  v.  Harvey,  14  Mont.  208,36  Pac.  38  ;  Brodie  v.Bickley,  2  Eawle,  431  ; 
King  V.  Clarke,  2  Hill  Eq.  611 ;  Jones  v.  Jones,  15  Tex.  463  ;  Price  v.  Mace,  47  Wis.  23  ; 
Tighe  V.  Tighe,  Ir.  R.  11  Eq.  203.  Contra,  Creighton  v.  Murphy,  8  Neb.  349,  1  N.  W. 
138,  where  process  was  served  on  the  deceased  before  his  death.  This  is  true  even 
though  the  foreign  administrator  was  the  same  person  as  the  domestic  representative. 
Johnson  v.  McKinnon,  (Ala.)  29  So.  696  ;  S.  v.  Fulton,  (Tenn.  Ch.)  49  S.  W.  297. 

In  Louisiana  it  has  been  held  that  judgment  against  an  executor  may  be  enforced 
acfainst  him  in  any  other  State  in  which  he  has  also  been  appointed  executor.  Turley 
V.  Dreyfus,  33  La.  Ann.  885.  And  in  a  few  States  it  has  been  held  that  where  judg- 
ment has  been  obtained  against  a  executor  he  may  be  sued  on  it  personally  in  another 
State.     Latine  v.  Clements,  3  Ga.  426  ;  White  v.  Archbill,  2  Sneed,  588.  —  Ed. 

2  The  dissenting  opinion  is  omitted.  —  Ed. 

'  Tlie  statement  of  facts,  arguments  of  counsel,  and  part  of  the  opinion,  in  which 
the  validity  of  certain  pleas  is  discussed,  are  omitted.  Williams  and  Keating,  JJ., 
delivered  concurrin-g  opinions. — Ed. 


646  VANQUELIN   V.    BOUARD.  [CHAP.  XIII. 

tion  of  the  litigation  was  certain  bills  of  exchange  of  which  the  deceased, 
Jacques  Alexander  Franqois  Vanquelin,  was  drawer,  the  defendant  the 
acceptor,  and  one  Bolli  tlie  indorsee.     Bolii  brought  an  action  against 
both  drawer  and  acceptor  in  the  Court  of  the  Tribunal  de  Commerce 
of  the  department  of  the  Seine,  and  obtained  judgment  against  them. 
Vanquelin,  the  drawer,  died  :  his  widow,  the  now  plaintiff,  in  accord- 
ance with  the  laws  of  France,  became  the  donee  of  the  universality  of 
the  real  and  personal  estates  belonging  to  the  succession  of  the  deceased 
at  his  death ;  and  she  alleges  that  thereby  and  according  to  the  laws  of 
France  all  rights,  claims,  and  causes  of  action,  and  all  liabilities  and 
obligations  of  the  deceased  vested  in  her  personally  and  absolutely,  and 
she  became,  according  to  the  said  laws,  liable  personally  upon  the  said 
judgment,  and  also  entitled  personally  and  in  her  own  name  to  sue  for 
and  enforce  all  the  rights  and  claims  of  the  deceased,  and  that  she  was 
according  to  the  said  laws  substituted  for  and  placed  in  the  same  posi- 
tion with  respect  to  the  defendant,  as  regarded  the  said  bills  of  ex- 
change and  the  judgment  thereon,  to  all  intents  and  purposes,  as  the 
deceased  had  been  in  his  lifetime.     The  count  then  goes  on  to  allege 
that  afterwards,  and  whilst  the  judgment  was  in  full  force  and  unsatis- 
fied, and  the  plaintiff  and  defendant  were  both  liable  thereupon,  the 
plaintiff,  in  accordance  with  the  laws  of  France,  was  obliged  to  pay  and 
did  pay  the  full  amount  of  the  judgment  and  all  interest  due  thereon, 
and  that  thereupon  Bolli  delivered  to  her  the  said  bills  of  exchange  and 
the  record  of  the  said  judgment,  and  the  plaintiff  then  became  and  still 
was  according  to  the  laws  of  France  entitled  to  the  benefit  of  all  the 
rio-hts  of  Bolli  upon  the  said  judgment  against  the  defendant,  and  en- 
titled to  enforce  the  same  against  the  defendant,  and  to  be  substituted 
for  Bolli  in  all  his  rights  against  the  defendant  in  respect  of  the  said 
judgment;  and  that  the  defendant  became  indebted  and  liable  to  pay 
her  the  amount  so  paid  by  her  upon  the  said  judgment,  with  6  per  cent 
interest  thereon  until  payment.     The  count  then  goes  on  to  allege  that 
the  plaintiff,  having  these  rights,  in  order  to  keep  alive  the  liability  of 
the  defendant,  and  to  prevent  the  same  from  being  barred  by  lapse  of 
time,  and  in  order  to  give  efl'ect  to  and  enforce  her  claim  against  the 
defendant,  took  proceedings  in  the  Tribunal  Civil  of  the  First  Instance 
of  the  department  of  the  Seine,  and  that  thereupon,  according  to  the 
practice  and  procedure  of  the  said  court,  on  the  2d  of  April,  1862,  by 
adjudication  of  the  said  court  an  injunction  was  made  to  the  defendant 
to  pav  certain  sums  of  money  for  principal,  interest,  and  costs,  and  it 
was  adjudged  and  notified  to  the  defendant  that  he  would  be  constrained 
to  do  so  by  all  lawful  means  and  by  arrest  of  his  body.     That  is  the 
substance  of  the  first  count.     The  substance  of  the  second  count  is, 
that  certain  bills  of  exchange  were  drawn  upon  the  defendant  by  the 
deceased,  and  accepted  by  him,  and  dishonoured  ;  that  the  deceased 
died,  and  the  plaiutitf  was  according  to  the  laws  of  France  the  donee 
of  the  universality  of  the  personal   and  real  estates   belonging  to  the 
succession  of  the  deceased,  and  thereupon  became  entitled  to  all  debts, 


CHAP.  XIII.]  VANQUELIN    V.    BOUAKD.  Q4:7 

claims,  and  causes  of  action  wbicli  tlie  deceased  was  entitled  to,  and 
tlie  same  became  and  were  according  to  tlie  said  laws  vested  in  llie 
plaintiff  personal!}'  and  absolutely,  in  the  same  manner  to  all  intents 
and  purposes  as  they  were  vested  in  the  deceased,  and  the  plaintiff  was 
entitled  to  demand  and  sue  for  the  same  in  her  own  name  and  in  her 
own  right,  and  the  claims  and  rights  of  the  deceased  upon  the  said 
bills  became  vested  in  the  plaintiff,  and  she  became  entitled  to  sue  the 
defendant  thereupon  in  her  own  name  and  in  her  own  right ;  and  she 
demands  payment  of  the  amount  thereof  and  interest.  The  ground 
of  the  demurrer  to  these  two  counts,  is,  that  the  plaintiff  is  in  effect 
suing  in  a  representative  character,  which  she  cannot  do  without  hav- 
ing obtained  letters  of  administration  in  this  country.  The  allegation 
in  both  counts  is,  that,  being  donee  of  the  universality  of  the  personal 
and  real  estates  belonging  to  the  succession  of  her  deceased  husband, 
the  plaintiff  became  according  to  the  laws  of  France  entitled  to  all  the 
property  and  rights  of  the  deceased  absolutely  in  her  own  right,  and 
not  in  an}'  representative  capacity  I  am  of  opinion  that  that  aver- 
ment, if  it  were  necessary  to  stand  upon  it,  must  be  taken  to  be  true, 
and  so  it  appears  upon  the  record  that  the  law  of  France,  in  which 
countr}'  all  the  parties  were  domiciled,  would  give  her  a  locus  standi  to 
sue  there  in  her  personal  capacity.  But  it  is  not  necessar}'  to  rest 
upon  that.  The  first  count  shows,  that,  after  the  death  of  her  hus- 
band, the  plaintiff  paid  the  amount  due  to  Bolli  in  respect  of  the  bills 
and  the  judgment ;  and  that,  it  seems,  would  give  her  the  right  to  sue 
in  the  courts  of  France  in  her  own  name  and  in  her  own  right,  as  in- 
deed it  would  in  this  countrj'  also.  It  has  on  many  occasions  been 
held  that  an  executor  or  administrator  has  his  election  to  sue  either  in 
his  own  right  or  in  his  representative  character  in  respect  of  transac- 
tions arising  since  the  death  of  the  testator  or  intestate,  although  what 
is  recovered  would  be  assets  in  his  hands.  Here,  the  alleged  cause  of 
action  is  founded  mainly  upon  what  was  done  b}'  the  plaintiff  after  the 
death  of  her  husband.  There  is  a  further  answer  to  the  demurrer  to 
the  first  count,  viz.  that  the  rights  of  the  plaintiff  were  confirmed  by 
the  second  adjudication  or  injunction  obtained  by  her  in  the  Tribunal 
Civil  of  the  First  Instance  of  the  department  of  the  Seine,  which  en- 
titled her  to  execution  against  the  defendant  in  that  countr}-.  It  seems 
to  me,  therefore,  that  there  is  abundant  on  the  first  count  to  show  that 
the  plaintiff  has  a  good  cause  of  action  against  the  defendant  in  her 
individual  capacity,  without  having  recourse  to  the  special  matter  before 
adverted  to.  As  to  the  demurrer  to  the  second  count,  it  is  clear  that 
the  plaintiff  took  the  bills  on  the  death  of  her  husband,  and,  if  nothing 
more  appeared,  she  could  only  enforce  them  here  by  clothing  herself 
with  the  character  of  his  representative.  But  the  law  of  doraicil  at- 
taches to  these  parties ;  and  there  is  a  distinct  averment  that  the 
plaintiff  was,  according  to  the  laws  of  France,  "  the  donee  of  the  uni- 
versality of  the  personal  and  real  estates  belonging  to  the  succession 
of  the  deceased,  and   thereupon  became  entitled  to  all  debts,  claims, 


648  CURRIE   V.   BIKCHAM.  [CHAP.  XIII. 

and  causes  of  action  which  the  deceased  was  entitled  to,  and  the  same 
became  and  were  according  to  the  said  laws  vested  in  the  plaintiff  per- 
sonall}'  and  absolutel}-  in  the  same  manner  to  all  intents  and  purposes 
as  they  were  vested  in  the  deceased,  and  the  plaintiff  was  and  is  en- 
titled to  demand  and  sue  for  the  same  in  her  own  name  and  in  her 
oivfi  right,  and  the  claims  and  rights  of  the  deceased  upon  the  said 
bills  became  vested  in  the  plaintiff,  and  the  plaintiff  became  entitled 
to  sue  the  defendant  thereupon  in  her  ow?i  name  and  in  her  own 
right."  I  think  it  sufficiently  appears  upon  this  record  that  the  plain- 
tiff was  entitled  to  sue  upon  these  bills  in  her  own  right;  the  fact  of 
her  being  the  donee  of  the  universality  of  the  personal  and  real  estates 
belonging  to  the  succession  of  her  deceased  husband  giving  her  by  the 
law  of  France  rights  different  from  those  which  an  executor  or  an  ad- 
ministrator has  in  this  country.  I  am  therefore  of  opinion  that  the 
l)laintiff  is  entitled  to  our  judgment  upon  the  demurrers  to  both  counts 
of  the  declaration.^ 


CURRIE  V.  BIRCHAM. 

King's   Bench.     1822. 

[Reported  1  Dowling  <Si  Ryland,  35.] 

Assumpsit  for  money  had  and  received  by  the  defendants  to  the 
plaintiff's  use.  The  defendants  pleaded  the  general  issue  ;  the  statute  of 
limitations  ;  and  several  special  pleas.  The  question  at  the  trial  arose 
upon  the  plea  of  the  general  issue.  At  tlie  trial  before  Abbott,  C.  J., 
at  the  Guildhall  Sittings  after  last  Michaelmas  Term,  the  case  proved 
in  evidence  was  this  :  In  the  year  1806,  Norman  Newby,  quarter- 
master of  the  84th  regiment  of  foot,  went  out  to  India,  indebted 
to  the  plaintiff,  a  laceman  in  London,  and  to  other  tradesmen,  for 
his  military  equipments,  and  other  property  of  considerable  value. 
Shortly  after  his  arrival  in  India,   he  died  intestate.     His  wife  took 

1  Where  by  the  law  of  tlie  domicil  of  the  deceased  a  universal  successor  legally  be- 
comes entitled  at  the  death  to  all  his  ii<ihts  and  subject  to  all  his  liabilities,  such  suc- 
cessor may  sue  or  be  sued  upon  sucli  rights  or  liabilities  in  a  foreign  State.  Beavan 
V.  Hastings,  2  K.  &  J.  724;  King  v.  Martin,  67  Ala.  177. 

A  representative  may  sue  in  a  foreign  State  upon  any  right  wliich  did  not  form  part 
of  the  estate  of  the  deceased,  but  accrued  to  him  after  the  death,  even  though  he  will 
be  accountable  as  such  representative  to  his  court  for  wliat  he  recovers.  Perkins  v. 
Stone,  18  Conn.  270  •,  Steitler  v.  Helenbush,  (Ky.)  61  S.  W.  701.  Thus  he  may  sue 
upon  a  note  running  to  hnn  as  administrator  :  Rittenhouse  v.  Ammerman,  64  Mo. 
197  ;  Tillman  v.  Walkup,  7  S.  C.  60  ;  ui)on  a  judgment  assigned  to  him  as  adminis- 
trator :  Rucks  V.  Taylor,  49  Miss.  552  ;  upon  a  policy  of  insurance  taken  out  by  him 
on  the  property  of  the  estate  :  Abbott  v.  Miller,  10  Mo.  141  ;  to  recover  a  ch'posit  he 
has  made  as  administrator  in  a  foreign  bank  :  Bingham  v.  Marine  Nat.  Bank,  112 
N.  Y.  661,  19  X.  E.  416;  to  recover  dividends  on  stuck  in  a  foreign  corporation: 
Smith  V.  Cuyler,  73  Ga.  654,  3  S.  E.  406.  —  Ed. 


CHAP.  XIII.]  CURRIE    V.    BIRCHAM,  649 

out  letters  of  administration  of  his  effects  in  tlie  Recorder's  Court  at 
Bomba}' ;  and,  having  collected  some  of  his  effects,  realized  the  pro- 
ceeds in  government  bills,  drawn  on  England,  and  returned  to  this 
country,  leaving  a  brother  officer  of  her  husband  to  collect  the 
remainder  of  his  effects,  and  remit  the  proceeds  in  like  manner,  for  her 
account,  after  she  quitted  India.  The  defendants'  testator,  John 
Moore,  had  been  Mr.  Newb3-'s  agent,  and  all  the  bills  in  question  came 
to  his  hands  through  the  medium  of  Mrs.  Newb}-,  and  as  was  alleged, 
converted  by  him  into  cash.  The  plaintiff  being  unalde  to  obtain  pay- 
ment of  his  debt,  in  the  year  1816,  took  out  letters  of  administration 
of  the  estate  and  effects  of  Mr.  Newby,  as  his  creditor,  in  the  Preroga- 
tive Court  of  the  Archbishop  of  Canterbury,  and  filed  a  bill  in  Equity 
against  Mr.  Moore,  and  Mrs.  Newby  (who  was  then  married  to  another 
husband),  to  account  for  the  money  which  had  come  into  their  hands, 
the  property  of  the  intestate.  In  his  answer  to  this  bill,  filed  in  1817, 
Mr.  Moore  stated,  that  he  had  paid  over  all  the  money  which  had  come 
to  his  hands,  to  Mrs.  Newby,  as  the  administratrix  of  her  husband's 
effects  and  as  her  agent,  with  the  exception  of  a  sum  of  £170  which  he 
retained  for  a  debt  contracted  with  him  by  the  intestate  when  living. 
Mr.  INloore  afterwards  died,  and  by  his  will  appointed  the  defendants 
bis  executors,  against  whom  the  present  action  was  brought.  At  the 
trial,  the  plaintiff's  claim  was  reduced  to  the  sum  of  £170  which  Mr. 
Moore,  in  his  answer  to  the  bill  in  Chancery,  admitted  he  had  retained 
in  his  hands  for  a  debt  due  to  him  from  the  intestate.  The  question 
was.  as  to  the  plaintiff's  right  to  sue.  It  was  objected,  that  the  letters 
of  administration  granted  by  the  Recorder's  Court  at  Bombay  to  Mrs. 
Newbv,  must  prevail  against  the  administration  granted  to  the  plaintiff 
in  this  country,  and  that  if  any  action  lay  against  Moore's  executors, 
it  must  be  at  the  suit  of  Mrs.  Newby,  he  having  been  her  agent.  Of 
this  opinion  was  Abbott,  C.  J.,  who  nonsuited  the  plaintifl',  but  gave 
him  leave  to  move  to  enter  a  verdict  for  the  sum  of  £170  above-men- 
tioned, if  the  court  should  be  of  opinion  that  the  action  was  well 
brought. 

Marrvat  now  moved  accordingly  to  set  aside  the  nonsuit,  and  enter 
a  verdict  for  the  plaintiff  for  £170.  He  contended,  that  the  plaintiff 
was  entitled  to  maintain  this  action  by  virtue  of  the  letters  of  adminis- 
tration granted  to  him  in  this  country.  Admitting  that  the  letters  of 
administration  granted  to  Mrs.  Newby,  in  the  Recorder's  Court  of  Bom- 
bay-, to  be  valid  and  effectual  in  that  country,  still  they  could  not  operate 
here  ;  and  therefore  it  was  incumbent  on  Mrs.  Newby,  if  she  meant  to 
act  as  administratrix  of  her  husband's  effects,  to  have  taken  out  letters 
of  administration  in  this  country.  This  she  had  not  done ;  and  the 
letters  granted  to  her  in  India  could  not  prevail  against  those  which  had 
been  granted  to  the  plaintiff  by  the  Prerogative  Court.  The  operation 
of  her  letters  had  ceased  on  her  quitting  India.  Then,  as  the  effects  of 
Newby  were  not  realized  until  they  reached  this  country,  when  the  bills 
were  converted  into  cash,  the  plaintiff  was  entitled  to  administer  that 


650  PETERSEN   V.    CHEMICAL    BANK.  [CHAP.  XIII. 

mono}-  b}'  virtue  of  the  administration  which  he  had  obtained,  and  con- 
sequentl}'  this  action  was  well  brought.  Vide  Tourton  v.  Flower,  3  P. 
Wins.  369  ;  Jannery  v.  Sealey,  1  Vent.  39  ;  and  26  Geo.  III.  c.  57. 

Per  Curiam.  We  are  of  opinion  that  this  action  will  not  lie  at  the 
suit  of  this  plaintiff.  The  wife  of  the  intestate  is  entitled  to  all  the 
effects  of  which  her  husband  died  possessed  in  India,  by  virtue  of 
the  letters  of  administration  granted  to  her  in  that  country.  It  is  not 
suggested  that  the  sum  of  money  in  question  was  not  a  part  of  the  pro- 
ceeds of  the  intestate's  effects.  The  effects  are  remitted  to  this  country 
by  her  in  the  shape  of  bills,  and  they  come  to  the  hands  of  her  agent 
Moore.  He  receives  the  money  to  her  use,  and  in  her  own  right  as 
administratrix.  If  she  has  any  claim  upon  the  money,  which  it  is 
alleged  that  Moore  retained  in  his  hands,  she  may  maintain  an  action, 
but  it  will  not  lie  at  the  suit  of  this  plaintiff,  under  the  letters  of 
administration  which  he  has  obtained. 

Hule  refused} 


PETERSEN  V.   CHEMICAL  BANK. 
Court  of  Appeals,  New  York.     1865. 

[Reported  32  New  York,  21.] 

This  action  was  brought  in  the  Superior  Court  of  New  York  to 
recover  the  sum  of  $32,321.24,  being  an  amount  standing  to  the  credit 
of  Aaron  Cohen,  as  a  dealer  on  the  books  of  the  defendants'  bank  in 
New  York.  Cohen  died  at  the  city  of  New  Haven  in  Connecticut,  on 
the  27th  day  of  July,  1862.  He  left  a  last  will  and  testament,  exe- 
cuted in  New  York,  on  the  11th  June,  1861,  which  was  duly  attested 
by  two  witnesses,  by  which  he  appointed  David  McCoard  and  Cohen  M. 
Soria  of  New  Orleans,  executors.  The  will  was  proved  and  admitted 
to  record  in  the  Probate  Court  of  the  District  of  New  Haven,  in 
September,  1862  ;  and  the  executors  not  appearing  to  qualify,  and 
one  of  them  having  renounced,  administration  with  the  will  annexed 
was  granted  to  David  J.  Peck  of  New  Haven,  he  giving  a  bond  with 
several  sureties,  in  the  penalty  of  $200,000,  conditioned  to  make  an 
inventory,  and  to  account,  etc.  He  demanded  of  the  defendants  the 
above  amount  standing  to  the  credit  of  Cohen,  presenting  an  authenti- 
cated copy  of  his  appointment,  but  payment  was  declined.  He  then, 
on  the  2d  December  1862,  made  a  transfer  under  his  hand  and  seal  of 
the  debt  due  from  the  defendants  to  the  i)laiutilf  in  this  action.     The 

1  Arc.  ■Williamson  i'.  Branch  Bank,  7  Ala.  906  :  Holcomh  t'.  Phelps,  16  Conn.  127  ; 
Norton  V.  Palmer,  7  Cash.  523  ;  Dorsay  v.  Connell,  22  X.  B.  564.  Contra,  Naylor  v. 
Moffatt,  29  Mo.  126.     And  see  Bond  v.  Graham,  1  Hare  482. 

Where  personal  property  is  broufrlit  into  a  State  after  the  death  of  the  deceased,  the 
(?xecutor  or  administrator  appointed  in  the  State  where  the  y>roperty  was  at  the  death 
may  sue  in  the  former  State  for  injury  to  the  property.  Clark  v.  Holt,  16  Ark,  257  ; 
Enihry  i;.  Millar,  1  A.  K.  Marsh.  300.—  Ed. 


CHAP.  XIII.]  PETEESEN   V.    CHEMICAL    BANK.  651 

instrument  is  expressed  to  be  in  consideration  of  $32,321.24  received 
to  the  assignor's  full  satisfaction ;  and  it  contains  proper  words  of 
sale  and  assignment,  and  a  guarant}-  of  the  collection  of  the  amount, 
and  a  promise  to  indemnify  the  plaintiff  against  loss  by  reason  of  the 
purchase.  The  plaintiff  called  at  the  bank  with  this  instrument,  pre- 
senting his  own  check  and  also  that  of  Peck,  and  demanded  the 
money.  He  also  exhibited  an  instrument,  signed  by  all  the  legatees 
named  in  the  will,  with  the  exception  of  one  who  resided  in  an  in- 
surgent State,  and  who  was  entitled  to  one-sixth  of  the  residue, 
requesting  that  the  money  might  be  paid  over  to  Peck  as  adminis- 
trator ;  but  the  defendant  persisted  in  refusing  payment,  on  the  ground, 
apparentl}-,  that  it  could  not  safely  be  paid,  except  to  an  administrator 
appointed  under  the  laws  of  this  State, 

The  controverted  questions  of  fact  to  which  the  evidence  on  the 
trial  was  directed,  related  to  the  domicil  of  Cohen  at  the  time  of  his 
death,  and  to  the  circumstances  under  which  the  transfers  to  the 
plain  tiflf  were  made.^ 

It  was  very  clearly  proved  that  he  owed  no  debts  in  New  York,  and 
only  a  few  very  small  sums  in  New  Haven.  The  legatees  in  his  will, 
besides  S15,000  to  a  friend  in  New  York  and  $5,000  to  another  in 
New  Orleans,  and  $5,500  to  his  servants,  were  his  brothers  and  sisters 
in  New  York,  New  Orleans,  and  Philadelphia. 

In  regard  to  the  transfer,  the  evidence  was  that  the  plaintiff  was  one 
of  the  sureties  of  Peck  in  the  administration  bond,  and  had  acted  as 
his  agent  in  the  settlement  of  the  estate.  The  consideration  did  not 
appear  to  have  been  paid  absolutely.  The  amount  was  advanced  by 
the  plaintiff,  and,  together  with  other  moneys  of  the  estate,  was 
deposited  in  a  bank  in  the  name  of  the  plaintiff  as  trustee,  he  having, 
however,  by  the  arrangement,  no  right  to  claim  it,  except  by  the  direc- 
tion of  Peck,  the  intention  apparently  being  that  it  should  be  paid  out 
in  the  course  of  administration. 

The  defendant's  counsel  moved  for  the  dismissal  of  the  complaint, 
on  the  grounds  that  an  action  would  not  lie  by  an  assignee  of  a  foreign 
administrator;  that  there  was  no  consideration  for  the  transfer,  and 
that  it  was  made  to  evade  the  laws  of  this  State,  and  that  the  Probate 
Court  in  Connecticut  had  not  jurisdiction  ;  and  the  counsel  also  insisted 
that  the  question  as  to  the  domicil  of  Cohen  should,  at  least,  be 
submitted  to  the  jury.  The  motion  was  denied,  and  the  judge  in- 
structed the  jury  to  find  for  the  plaintiff.  The  defendant's  counsel 
excepted.  It  was  directed  that  the  exceptions  be  heard,  in  the  first 
instance,  at  the  General  Term.  The  verdict  was  for  the  plaintiff  for 
the  amount  claimed,  with  interest ;  and  judgment  for  the  plaintiff  was 
rendered  thereon  at  the  General  Term,  upon  which  the  defendant 
brought  this  appeal. 

1  So  much  of  the  statement  of  facts'  and  opinion  as  involve  the  decision  of  this  ques- 
tion of  fact  is  omitted.  The  arguments  of  counsel  and  concurring  opinion  of  PoTTEB, 
J.,  are  also  omitted.  —  Ed. 


652  PETEESEN    V.    CHEMICAL    BANK.  [CHAP.  XIIL 

Denio,  C.  J.  The  evidence  was  quite  conclusive  that  the  domicil 
of  Cohen  at  the  time  of  his  death  was  at  New  Haven.  ...  A  foreign 
executor  or  administrator  (and  one  appointed  under  the  laws  of  a 
sister  State  of  the  Union  is  foreign  in  the  sense  of  the  rule),  cannot 
sue  in  his  representative  character  in  the  courts  of  this  State.  The 
question  whether  a  party  deriving  title  to  a  chose  in  action  by  transfer 
from  such  an  executor  or  administrator,  can  prosecute  the  debtor 
residing  here,  in  our  courts,  has  been  variously  decided  in  the  cases  to 
which  we  have  been  referred.  In  the  Supreme  Court  in  the  first 
district,  the  Merchants'  Bank  of  New  York  was  sued  for  refusing  to 
transfer  to  the  plaintiff  one  hundred  shares  of  its  stock,  to  wiiich  the 
latter  made  title  by  transfers  from  the  executors  of  one  Robert  Middle- 
brook,  in  whose  name  the  stock  stood  on  the  books  of  the  bank.  He 
died  at  his  residence  in  Connecticut,  and  his  will  had  been  proved,  and 
letters  testamentary  had  been  issued  by  the  Probate  Court  of  the 
proper  district  in  that  State.  The  plaintiff  was  a  legatee  of  a  certain 
amount  of  the  testator's  stock,  and  the  shares  in  controversy  had  been 
assigned  to  him  in  satisfaction  of  the  legacy.  The  court  held  that 
the  executors  became  vested  with  the  title  to  the  stock,  and  tliat  the 
plaintiff,  though  he  derived  his  title  under  them,  could  enforce  his 
right  against  the  bank  in  our  courts,  and  judgment  was  accordingly 
given  in  his  favor.  Middlebrook  v.  The  Merchants'  Bank,  27  How. 
Pr.  474  ;  s.  c.  at  Special  Term,  24  How.  Pr.   267. 

A  different  rule  has  been  established  in  the  courts  of  New  Hamp- 
shire and  of  Maine.  Thompson  r.  Wilson,  2  N.  H.  291  :  Stearns  v. 
Burnham,  5  Greenl.  261.  In  each  of  these  cases  the  defendant  was 
sued  as  the  maker  of  a  promissory  note,  by  parties  claiming  as  in- 
dorsees under  indorsements  by  the  executors  of  the  payees  who  were 
respectively  residents  of  Massachusetts,  and  whose  wills  were  proved 
and  letters  thereon  issued  in  that  State.  The  defendants  prevailed  in 
each  case,  on  the  objection  that  the  respective  plaintifTs  were  subject 
to  the  same  disability  to  sue  which  would  have  attached  to  the  ex- 
ecutors if  they  had  attempted  to  prosecute  in  another  State  than  that 
imder  whose  laws  their  letters  testamentary  were  granted.  In  the  first 
case  the  judgment  was  placed  upon  the  English  ecclesiastical  law,  by 
which  probates  of  wills  and  grants  of  administration  are  void  when 
not  made  by  the  ordinary  of  the  proper  diocese,  a  doctrine  which  I  do 
not  think  applicable  to  questions  arising  between  different  States,  as 
it  makes  no  allowance  for  the  principles  of  international  comity.  In 
the  case  in  Maine,  it  was  thought  that  allowing  a  recovery  would  be 
an  indirect  mode  of  giving  operation  in  Maine  to  the  laws  of  jNIassa- 
chusetts,  and  also  that  the  effects  of  the  deceased  might  thereby  he  with- 
drawn froni  the  State,  to  the  i)rcjudice  of  creditors  residing  there. 

The  precise  case  now  before  us  came  before  the  Supreme  Court 
of  the  United  States  in  Harper  r.  Butler  (2  Pet.  239).  The  suit  was 
brought  in  Mississippi,  on  a  chose  in  action,  originally  existing  in 
fever  of  a  citizen  of  Kentucky,  who  died  there,  and  whose  executor 


CHAP.  XIIL]  PETERSEN    V.    CHEMICAL    BANK.  653 

having  letters  testamentarj'  issued  in  that  State,  assigned  it  to  the 
plaintiff.  In  Mississippi,  choses  in  action  are  assignable  so  as  to 
permit  the  assignee  to  sue  in  his  own  name,  as  is  now  the  case  in  this 
State.  The  question  arose  on  demurrer  to  the  complaint,  and  the 
District  Court  sustained  the  demurrer.  The  judgment  was  reversed 
upon  a  short  opinion  by  Chief  Justice  Marshall,  which  merely  states 
the  point,  and  contains  no  general  reasoning.  No  counsel  appeared  on 
behalf  of  the  defendant. 

The  case  in  Maine  has  been  made  the  subject  of  comment  in  Stor3''s 
Treatise  on  the  Conflict  of  Laws  (§§  258,  259),  and  is  decidedly  dis- 
approved by  the  learned  writer.  He  says,  that  upon  the  reasoning 
of  the  case  a  promissory  note  would  cease  to  be  negotiable  after  the 
death  of  the  payee,  which,  he  observes,  would  certainly  not  be  an 
admissible  proposition. 

It  seems  clear  to  me  that  there  are  no  precedents  touching  the 
question  which  are  binding  upon  this  court,  or  which  can  relieve  it 
from  the  duty  of  examining  the  question  upon  principle.  There  are 
certain  legal  doctrines,  now  very  well  established,  which  have  a  strong 
bearing  upon  the  point.  It  is  verj-  clear,  in  the  first  place,  that 
neither  an  executor  or  administrator,  appointed  in  a  foreign  political 
jurisdiction,  can  maintain  a  suit  in  his  own  name  in  our  courts. 
Foreign  laws  have  no  inherent  operation  in  this  State  ;  but  it  is  not 
on  this  account  solely  or  principally  that  we  deny  foreign  representa- 
tives of  this  class  a  standing  in  our  courts.  The  comity  of  nations, 
which  is  a  part  of  the  common  law,  allows  a  certain  effect  to  titles 
derived  under  and  powers  created  by  the  laws  of  other  countries. 
Foreign  corporations  maj-  become  parties  to  contracts  in  this  State, 
and  may  sue  or  be  sued  in  our  courts  on  contracts  made  here  or 
within  the  jurisdiction  which  created  them.  The  only  limitation  of 
that  right  is  the  inhibition  to  do  anything  in  its  exercise  which  shall  be 
hostile  to  our  own  laws  or  policy.  Bank  of  Augusta  v.  Earle,  13  Pet, 
519  ;  Bard  v.  Poole,  2  Kern.  495,  505,  and  cases  cited.  And  yet 
nothing  can  be  more  clearl}'  the  emanation  of  sovereign  political  power 
than  the  creation  of  a  corporation.  Again,  the  receivers  of  insolvent 
foreign  corporations,  and  assignees  of  bankrupt  and  insolvent  debtors, 
under  the  laws  of  other  States  and  countries,  are  allowed  to  sue 
in  our  courts.  It  is  true  their  titles  are  not  permitted  to  overreach 
the  claims  of  domestic  creditors  of  the  same  debtor,  pursuing  their 
remedies  under  our  laws;  but  in  the  absence  of  such  contestants  they 
fully  represent  the  rights  of  the  foreign  debtors.  Story's  Conf. 
Laws,  §  112;  Hoyt  v.  Thomasen,  1  Seld.  320;  s.  c.  19  N.  Y. 
207 ;  Willets  v.  Waite,  25  N.  Y.  584.  It  is  not  therefore  because 
the  executor  or  administrator  has  no  right  to  the  assets  of  the 
deceased,  existing  in  another  country,  that  he  is  refused  a  standing  in 
the  courts  of  such  country,  for  his  title  to  such  assets,  though  conferred 
by  the  law  of  the  domicil  of  the  deceased,  is  recognized  everywhere. 
Reasons  of  form,  and  a  solicitude  to  protect  the  rights  of  creditors  and 


654  PETERSEN   V.   CHEMICAL    BANK.  [CHAP.    XIIL 

others,  resident  in  the  jurisdiction  in  which  the  assets  are  found,  have 
led  to  the  disability'  of  foreign  executors  and  administrators,  which 
disabiUty,  however  inconsistent  with  principle,  is  very  firmly  estab- 
lished. We  have  lately  decided  that  if  the  debtors  of  the  deceased 
will  voluntarily  pay  what  they  owe  to  the  foreign  executor,  such  pay- 
ment will  discharge  the  debts,  and  the  moneys  so  collected  will  be 
subject  to  the  administration  of  such  foreign  executor.  Parsons  v. 
Lyman,  20  N.  Y.  103. 

But  the  principle  of  law  which  I  think  governs  this  case  is,  that  the 
succession  to  the  personal  estate  of  a  deceased  person  is  governed  by 
the  law  of  the  country  of  his  domicil  at  the  time  of  his  death.     This 
is  so  whether  the  succession  is  claimed  under  the  law  providing  for 
intestacy  or  for  transmission  by  last  will  and  testament.     See  Parsons 
V.  Lyman,  supra,  and  authorities  cited  at  p.  112.     It  is  not  so  held 
because  the  foreign  legislature  or  the  local  institutions  have  any  extra- 
territorial force,  but  from  the  comity  of  nations.     Accordingly,  it  is  a 
necessary  supplement  to  the  doctrine  that,  if  the  law-making  power  of 
the  State  where  the  property  happens  to  be  situated,  or  the  debtor 
of   the  deceased   reside,   to  subserve   its   own    policy,   has   engrafted 
qualifications  or  restrictions  upon  the  rights  of  those  who  would  suc- 
ceed to  the  estate  by  the  law  of  the  domicil,  they  must  take  their 
rights  subject  to  such  restrictions.     One  of  the  most  natural,  as  well  as 
the   most  usual  of  these  qualifications  is  that  which  is  intended  to 
secure  the  creditors  of  the  deceased  residing  in  the  country  where  the 
assets  exist.     It  is  in  part  to  subserve  this  policy  that  the  personal 
representatives  are  not   permitted  to  prosecute  the  debtor  or  parties 
who  withhold  his   effects  in  our  courts.     But  the  protection  to  the 
creditor  is  further  secured  by  the  remedy  which  is  provided  by  allow- 
ing them  to  take  out  administration  in  the  jurisdiction  where  the  assets 
are.     If  the  deceased  have  any  relatives  in  this  State  who  would  be 
preferably  entitled,  they  can  be  summoned,  and  if  they  elect  to  take 
out  letters  themselves,  they  will  be  compellable  to  give  bond,  and  the 
creditors  will  be  then  made  secure  in  their  rights,  or  if  the  relatives 
refuse  to  assume  that  responsibility,  then  the  creditors  may  themselves 
be  appointed,  and  thus  qualified  to  take  possession  of  the  assets  here 
upon  the  same  terms.     2  R.  S.  73,  §§23,  24.     If  the  debtors  of  the 
estate  elect  to  pay  to  tlie  former  representative,  or  to  deliver  to  him 
the  movable  assets,  before  the  granting  of  administration  in  this  State, 
the  domestic  creditors  are  put  to  the  inconvenience  of  asserting  their 
rights  in  the  courts  of  the  country  of  their  debtor's  domicil  against  his 
re[)resentativcs  appointed  under  the  laws  of  that  country,  just  as  they 
would  have  been  compelled  to  do  if  all  his  effects  had  been  situated 
there.     Another  general  princi|)le  of  law  necessary  to  be  averted  to  is, 
that  the   executor  of   a   testator,  as  soon   at  least  as  he   has  clothed 
himself  with  the  commission  of  the  Probate  Court,  is  vested  willi  the 
title  to  all  the  movable  property  and  rights  of  action  which  the  de- 
ceased possessed  at  the  instant  of  his  death.    The  title  of  the  executor, 


CHAP.  XIII.J  PETEESEN    V.    CHEMICAL   BANK.  655 

it  is  true,  is  fiduciary  and  not  beneficial.  That  title  is,  however,  per- 
fect against  every  person  except  the  creditors  and  legatees  of  the 
deceased.  The  devolution  of  ownership  is  direct  to  the  representative, 
and  the  beneficiaries  take  no  title  in  the  specific  property  which  the 
law  can  recognize.  An  administrator  with  the  will  annexed,  has  the 
same  rights  of  propertj'  as  the  executor  named  in  the  will  would  have 
had  if  he  had  qualified.     2  R.  S.  72,  §  22. 

The  law  of  maintenance  while  it  existed,  prohibited  the  transfer  of 
the  legal  property  in  a  chose  in  action,  so  as  to  give  the  assignee  a 
right  of  action  in  his  own  name.  But  this  is  now  abrogated,  and  such 
a  demand  as  that  which  is  asserted  against  the  defendant  in  this  suit 
may  be  sold  and  conveyed  so  as  to  vest  in  the  purchaser  all  the  legal, 
as  well  as  the  equitable  rights  of  the  original  creditor.  Code,  §  111. 
Though  such  demands  are  not  negotiable  in  precisely  the  same  sense 
as  commercial  paper,  since  the  assignee  is  subject  to  ever}'  substantial 
defence  which  might  have  been  made  against  the  assignor,  yet  where, 
as  in  this  case,  no  such  defence  exists,  the  transfer  is  absolute  and 
complete.  The  title  which  is  vested  in  the  executor  carries  with  it  the 
jus  disponendi  which  generally  inheres  in  the  ownership  of  propert}'. 
"  It  is  a  general  rule  of  law  and  equit}',"  says  Judge  Williams,  in  his 
treatise  on  executors,  "  that  an  executor  or  administrator  has  an 
absolute  power  of  disposal  over  the  whole  personal  effects  of  his 
testator  or  intestate,  and  that  they  cannot  be  followed  by  creditors, 
much  less  by  legatees,  either  general  or  specific,  into  the  hands  of  the 
alienee."  Treatise,  p.  796  ;  see  also  Whale  v.  Booth,  7  Term  R. 
625,  in  note  to  Farr  v.  Newman  ;  Sutherland  v.  Breesh,  7  Johns.  Ch. 
17  ;  Rawlinson  v.  Stone,  3  Wils.  1  ;  Harper  v.  Butler,  supra. 

It  follows  that  the  plaintiff  presented  himself  to  the  Superior  Court 
as  the  owner  b}'  purchase  and  assignment  of  the  debt  against  the 
defendant,  from  a  person  holding  the  title  and  hence  having  authority 
to  sell.  He  claimed  to  recover,  not  as  the  representative  of  any  other 
part}-,  but  as  the  substituted  creditor  of  the  defendants'  bank.  He 
had,  it  is  true,  to  make  title  through  the  will  of  Cohen,  and  the  pro- 
ceedings of  the  Probate  Court  of  Connecticut.  But  the  validit}'  of  that 
title  depended  upon  the  law  of  Connecticut,  that  being  the  place  of 
the  domicil  of  the  former  owner  of  the  demand.  The  validity  of 
every  transfer,  alienation,  or  disposition  of  personal  property  depends 
upon  the  law  of  the  owner's  domicil.  Story  on  Conf.  of  I^aws, 
§  383.  In  the  absence  of  proof  to  the  contrary,  we  assume  the  law 
of  Connecticut  respecting  the  alienation  of  choses  in  action  to  be  the 
same  as  our  own.  If  Cohen  had,  at  his  death,  been  a  resident  of  this 
State,  and  his  administrator  with  the  will  annexed  had  sold  and 
assigned  to  the  plaintiff  his  demand  against  the  bank,  there  is  no 
manner  of  doubt  but  that  the  assignee,  upon  the  refusal  of  the  bank  to 
pay  the  amount,  could  haA'e  maintained  this  action. 

Hence  there  is  not.  I  think,  any  reason  whv  the  plaintiiT  should  be 
precluded  from  maintaining  his  action,  on  account  of  his  making  title 


656  PETERSEN   V.    CHEMICAL   BANK.  [CHAP.  XIIL 

through  a  foreign  administration.  The  rule  is  not  that  our  courts 
do  not  recognize  titles  thus  acquired.  It  is  simply  that  a  foreign 
executor  or  administrator  can  have  no  standing  in  our  courts.  The 
plaintiff  does  not  occupy  that  position.  He  sues  in  his  own  right  and 
for  his  own  interest,  and  represents  no  one.  In  my  opinion,  the 
disability  to  sue  does  not  attach  to  the  subject  of  the  action,  but  is 
confined  to  the  person  of  the  plaintitf.  If  he  is  an  unexceptionable 
suitor,  and  there  is  no  rule  of  form  or  of  policy  which  repels  him 
from  our  courts,  he  is  to  Oe  received,  and  he  may  make  out  his  title 
to  the  subject  claimed,  in  any  manner  allowed  by  law  ;  and  it  has 
been  shown  that  title  acquired  through  a  foreign  administration  is 
universally  respected  by  the  comity  of  nations. 

It  is  pretty  obvious  from  the  evidence  of  the  circumstances  of  the 
transfer  by  Peck  to  the  plaintiff",  that  its  object  was  to  avoid  the 
objection  which  might  be  taken  if  Peck  had  sued  in  his  own  name 
as  administrator,  without  taking  out  letters  here.  There  was  no  other 
conceivable  motive  for  the  plaintiff  to  purchase  this  moneyed  demand 
payable  immediately,  for  its  precise  amount  paid  down.  If  his  check 
on  the  bank,  drawn  shortly  after  the  transfer,  had  been  answered,  he 
would  have  received  the  precise  amount  he  had  parted  with,  and  the 
transaction  at  the  best  would  have  been  paying  with  one  hand  to 
receiving  the  same  amount  back  with  the  other.  If  he  failed  to  realize 
the  amount,  he  was  to  be  indemnified  by  Peck.  This  circumstance, 
and  the  manner  in  which  the  assumed  consideration  was  disposed  of, 
would  doubtless  have  led  the  jury  to  find,  that  the  form  adopted  was 
resorted  to  in  order  to  enable  the  administrator  to  avail  himself  of  the 
balance  in  the  defendant's  bank,  without  taking  out  administration 
here.  Still,  as  between  the  plaintiff  and  Peck,  the  interest  in  the 
demand  passed.  Peck  would  have  been  estopped  by  his  conveyance 
under  seal,  containing  an  acknowledgment  of  the  paj'ment  of  tlie 
consideration,  from  setting  up  that  nothing  passed  by  the  conveyance. 
I  am  of  opinion  that  the  defendant  cannot  make  a  question  as  to  the 
consideration.  If  all  the  parties  had  been  residents  of  this  State,  a 
transfer  of  the  demand,  good  as  between  the  parties  to  that  transfer, 
would  have  obliged  the  defendant  to  respond  to  the  action  of  the 
transferee.  Then  if  we  bold,  as  I  think  we  should,  that  the  objection 
to  the  suit  of  the  administrator  was  in  the  nature  of  a  personal  dis- 
al)ility  to  sue,  and  not  an  infirmity  inhering  in  the  subject  of  the  suit, 
the  fact  that  the  transfer  was  made  for  the  purpose  of  getting  rid  of 
the  objection,  should  not  prejudice  the  plaintifl!'.  The  cases  which  have 
been  referred  to  upon  this  point  have  considerable  analogy.  The 
Constitution  and  laws  of  the  United  States  confer  upon  the  courts  of 
the  Union  jurisdiction  in  suits  between  citizens  of  different  States, 
with  an  exception  contained  in  an  act  of  Congress,  of  one  suing  as  the 
assignee  of  a  chose  in  action,  of  a  party  whose  residence  was  such  as 
not  to  permit  him  to  sue.  In  an  action  by  an  assignee  concerning  the 
title  to  land,  which  was  not  within  the  exception,  it  was  held  not  to 


CHAP,  XIII.]  PETERSEN    V.    CHEMICAL    BANK.  657 

be  an  objection  which  the  defendant  could  take,  that  the  assignment 
was  made  for  the  purpose  of  removing  the  difficulty  as  to  jurisdiction. 
Briggs  r.  French,  2  Sumn.  251.  In  a  late  case  in  this  court  against 
a  foreign  corporation,  which  could  not  be  prosecuted  here  except  by 
a  resident  of  this  State,  unless  the  cause  of  action  arose  here  or  the 
subject  of  the  action  was  situated  here,  it  was  held  that  the  objection 
—  that  the  assignment  of  the  demand  by  one  not  qualified  by  his 
residence  to  sue, 'to  the  plaintiff  who  was  thus  qualified,  was  made 
for  the  purpose  of  avoiding  the  difficulty  —  could  not  be  sustained. 
McBride  v.  The  Farmers'  Bank,  26  N.  Y.  450. 

I  have  not  thus  far  referred  to  the  circumstance,  that  Cohen  was 
shown  not  to  have  owed  any  debts  in  this  State.  That  fact  was  proved 
as  strongly  as  in  the  nature  of  the  case  such  a  position  could  be 
established.  The  administrator,  whose  business  it  was  to  ascertain 
the  existence  of  debts,  and  the  confidential  servant  of  Cohen  who  was 
ver}'  familiar  witli  his  transactions,  affirmed  that  there  were  none ; 
and  the  defendant  gave  no  evidence  on  the  subject.  The  motive  of 
policy  for  forbidding  the  withdrawal  of  assets  to  the  prejudice  of 
domestic  creditors,  did  not  therefore  exist  in  this  case.  Still,  if  the 
rule  is  that  neither  the  foreign  administrator  or  his  assignee  can  main- 
tain an  action  in  our  courts  to  collect  a  debt  against  a  debtor  residing 
here,  on  account  of  its  tendency  to  prejudice  domestic  creditors,  the 
exceptional  features  of  the  present  case  would  not  change  the  prin- 
ciple. It  would  often  be  more  difficult  than  in  this  case  to  disprove  the 
existence  of  such  debts.  But  I  am  of  opinion  that  the  objection 
should  be  regarded  as  formal,  and  that  it  does  not  exist  where  the 
plaintiff  is  not  a  foreign  executor  or  administrator  but  sues  in  his  own 
right,  though  his  title  may  be  derived  from  such  a  representative. 

I  am  in  favor  of  affirming  the  judgment  of  the  Supreme  Court. 

Judgment  affirmed?- 

1  Ace.  Harper  v.  Butler,  2  Pet.  230  ;  Camp  v.  Simon,  (Utah)  63  Pac.  332;  Munson 
V.  Exchange  Nat.  Bank,  19  Wash.  12.5,  52  Pac.  1011.  But  see  Heyward  v.  Williams,  57 
S.  C.  235,  35  S.  E.  503.  Where  negotiable  paper,  part  of  the  estate,  is  transferred  by 
the  representative  appointed  in  the  State  of  domicil  of  the  deceased,  the  transferree 
may  sue  in  another  State  in  Iiis  own  name.  Campbell  v.  Brown,  64  la.  425;  Rand  v. 
Hubbard,  4  Met.  252  (semblc)  ;  Owen  v.  Moody,  29  Miss.  79  ;  Gove  v.  Gove,  64  N.  H. 
503,  15  Atl.  121  (see  Thompson  v.  Wilson,  2  N.  H.  291);  Mackay  v.  St.  Mary's 
Church,  15  R.  I.  121,  23  Atl.  108.  Contra,  Stearns  v.  Burnham,  5  Me.  261  ;  McCarty 
V.  Hall,  13  Mo.  480.  So  a  foreign  representative  may  sue  in  his  own  name  on  a  note 
payable  to  bearer.  Knapp  v.  Lee,  42  Mich  41,  3  N.  W.  244.  And  if  he  is  allowed  by 
statute  to  sue,  in  a  foreign  State,  he  may  sue  on  a  note  payable  to  the  deceased,  though 
there  is  a  local  representative.  Eells  v.  Holder,  2  McCrary,  622,  12  Fed.  668.  So  a 
foreign  executor  may  present  a  note  payable  to  his  testator  for  payment  or  protest. 
Rand  v.  Hubbard,  4  Met.  252. 

When  the  representative  at  the  domicil  of  the  deceased  transfers  stock,  the  trans- 
ferree may  have  the  stock  transferred  to  his  name  on  the  books.  Brown  v.  S.  F.  Gas- 
light Co.,  58  Cal.  426  ;  Luce  v.  R.  R.,  63  N.  H.  589,  3  Atl.  618  ;  Middlebrook  v. 
Merchants'  Bank,  3  Keyes,  135,  3  Abb.  Dec.  295.  And  a  foreign  executor  has  a  right 
to  vote  on  stock  belonging  to  his  testator.  In  re  Election  of  Cape  May,  &c.  Nav.  Co., 
51  N.  J.  L.  78,  16  Atl.  191.  —  Ed. 

42 


658  STEVENS   V.    GAYLORD.  [CHaP.   XIT. 


CHAPTER    XIV. 

THE   ADlVnNISTRATION   OF   ESTATES. 


SECTION   I. 

ESTATES    OF    DECEASED. 


STEVENS    V.    GAYLORD. 
Supreme  Judicial  Court  of  Massachusetts.     1814. 

\Tieported,\\  Massachusetts,  256. J 

Jackson,  J.^  The  determination  of  this  cause  depends  on  the  suffi- 
ciency of  the  defendant's  second  plea  in  bar.  In  that  plea  he  admits, 
in  effect,  that  he  was  indebted  to  the  intestate,  as  alleged  in  the  declar- 
ation, and  that  the  plaintiff  is  administrator,  duly  appointed  in  this 
State,  of  the  effects  of  the  deceased  ;  but  he  alleges,  in  his  defence, 
that  before  the  plaintiff  was  so  appointed  administrator,  he,  the  defend- 
ant, and  one  Philemon  Gaylord,  who  were  both  inhabitants  and  residents 
in  Connecticut,  were  duly,  and  according  to  the  laws  of  Connecticut, 
appointed  administrators  of  the  effects  of  the  said  deceased,  by  a  cer- 
tain judge  of  probate  there,  who  had  the  power  of  granting  such  ad- 
ministrations ;  that  the}'  gave  bond  to  the  said  judge,  with  condition  to 
exhibit  an  inventoiT,  and  to  render  their  account  to  him  ;  that  they 
did  accordingly  exhibit  an  inventory  of  all  the  effects  of  the  deceased, 
which  had  come  to  their  knowledge,  including  therein  all  the  monej's 
due  from  the  defendant  to  the  deceased  on  the  notes  and  demands 
specified  in  tlie  plaintiffs  declaration;  by  means  of  all  which  the  de- 
fendant is  holden  and  obliged  to  account  to  the  said  judge  of  probate 
in  Connecticut  for  all  the  said  moneys. 

The  plaintiff  assigns,  as  a  special  cause  of  his  demurrer  to  this  plea, 
that  it  is  not  alleged  therein  that  tlie  said  Til)bals,  at  the  time  of  his 
decease,  or  at  any  lime  before,  resided  or  had  his  home  in  Connecticut ; 
and,  on  examining  the  other  parts  of  this  record,  it  appears  that  such 
an  averment  was  made  in  another  plea ;  and  l)eing  traversed,  the  issue 
was  found  for  the  plaintiff. 

1  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.    I.]  STEVENS   V.    GAYLORD.  659 

We  are  well  satisfied  that  this  point  is  wholly  immaterial  in  the  de- 
cision of  this  cause.  The  right  of  granting  administration  is  not  con- 
fined to  the  State  or  country  in  which  the  deceased  last  dwelt.  It  is 
very  common,  and  often  necessary',  that  administration  be  taken  out 
elsewhere.  If  a  foreigner,  or  a  citizen  of  any  other  of  the  United 
States,  dies,  leaving  debts  and  effects  in  this  State,  these  can  never  be 
collected  b}"  an  administrator  appointed  in  the  place  of  his  domicil ; 
and  we  uniformly  grant  administration  to  some  person  here  for  that 
purpose.  This  is  the  rule  of  the  common  law,  and  it  is  adopted,  as  we 
understand,  in  most  of  the  United  States.  [Goodwin  v.  Jones,  3  Mass. 
Rep.  514;  Dawes  v.  Boylston,  9  Mass.  Rep.  337;  Borden  ?'.  Borden, 
5  Mass.  Rep.  67;  Langdon  et  al.  v.  Potter,  11  Mass.  313.] 

In  such  case,  however,  the  administration  granted  here  is  considered 
as  merely  ancillary  to  the  principal  administration,  granted  in  the  juris- 
diction where  the  deceased  dwelt.  It  is  true  that  such  ancillary  admin- 
istration is  not  usuall}'  granted  until  an  administrator  is  appointed  in 
the  place  of  the  deceased's  domicil.  But  this  cannot  be  a  necessar}- 
prerequisite  ;  for  if  so,  and  it  should  happen  that  administration  is 
never  granted  in  the  foreign  State,  the  debts  due  here,  under  such  cir- 
cumstances, to  a  deceased  person  could  never  be  collected  ;  and  the 
debts  due  from  him  to  citizens  of  this  State  might  remain  unpaid. 

The  time  of  granting  the  respective  letters  of  administration  is  also 
immaterial  in  this  case.  The  administrators  in  Connecticut,  if  dulj' 
appointed,  must  collect  all  the  effects  of  the  deceased  in  that  State, 
whilst  the  plaintiff  will  do  the  like  here  ;  and  the  residue,  after  paying 
the  debts  of  the  deceased,  wherever  collected  or  remaining,  must  be 
distributed  according  to  the  laws  of  the  State  in  which  the  deceased 
dwelt.  If  it  should  appear,  upon  due  examination  in  our  Probate 
Court,  that  Tibbals  had  his  home  in  Connecticut,  we  should  cause  the 
balance  remaining  in  the  hands  of  the  administrator  here  to  be  dis- 
tributed according  to  the  laws  of  Connecticut,  or  transmitted  for  dis- 
tribution b}'  the  administrator  in  Connecticut,  under  the  decree  of  the 
Probate  Court  there.  And  we  cannot  doubt  that  the  courts  in  Con- 
necticut would,  under  like  circumstances,  adopt  the  same  principle  of 
comity  and  justice.  Ambler,  25  ;  2  Yesey,  35  ;  2  B.  &  P.  229,  in  notis  ; 
Bruce  r.  Bruce,  9  Mass.  Rep.  337  ;  Dawes,  Judge,  &c.  v.  Boylston  ; 
[Harvey  v.  Richards,  1  Mason,  381  ;  Dawes  v.  Head,  3  Pick.  128,  2 
Kent.  344  ;  Decouche  v.  Savetier,  3  Johns.  Ch.  310  ;  Dixon  v.  Ram- 
say, 3  Cran.  319;  United  States  v.  Crosby,  7  Cran.  115;  Bruce  v. 
Bruce,  2  B.  &  P.  229.] 

Having  disposed  of  these  two  subordinate  points,  the  great  question 
in  the  cause  still  remains,  —  whether,  if  the  debtor  of  an  intestate  be 
duh'  appointed  administrator  in  another  State,  that  circumstance, 
together  with  the  others  stated  in  this  plea,  furnishes  a  sufficient 
defence.^  .  .   . 

It  was  suggested  in  the  argument,  that  the  notes  on  which  this  action 

^  The  learned  judge  held  that  the  defence  stated  in  the  plea  was  a  good  one.  —  Ed. 


660  FAT   V.    HAVEN.  [CHAP.    XIV. 

is  brought  were  in  this  State  at  the  death  of  the  intestate.  This  fact 
does  not  appear  on  the  record  ;  and,  if  material,  it  should  have  been 
pleaded.  But  if  the  notes  were  here,  the  debtor  being  a  citizen  of 
Connecticut,  might  be  effectuall}'  discharged  bj'  a  release  from  any  ad- 
ministrator in  Connecticut  having  lawful  authority  to  receive  the  debt. 
And,  further,  the  notes,  under  such  circumstances,  could  never  be  re- 
covered, in  the  ordinary  course  of  things,  without  being  sent  to  Con- 
necticut, and  demanded  by  an  administrator  duly  appointed  there. 

The  circumstance  of  the  defendant's  having  come  into  this  State,  so 
as  to  expose  himself  to  this  action,  cannot  affect  the  general  principle. 
The  law  would  be  the  same  if  that  contingenc}^  had  not  happened ;  in 
which  case  the  debtor  could  never  be  compelled  to  pay  but  to  an  ad- 
ministrator duly  authorized  in  Connecticut ;  and  of  course  a  release 
given  to  him  b}'  such  an  administrator  would  bar  any  subsequent  action 
for  the  same  debt. 

Another  reason  why  this  money  should  be  accounted  for  in  Connecti- 
cut is,  that  all  the  effects  of  the  deceased  are  liable,  in  the  first  instance, 
to  his  creditors  there.  No  principle  of  comity  requires  of  that  govern- 
ment to  lend  their  aid  in  collecting  the  effects  of  the  deceased,  and  to 
send  those  effects  out  of  their  country,  whilst  any  of  their  citizens  have 
just  and  legal  claims  upon  the  fund.  This  debt,  then,  was  assets,  liable 
to  the  claims  of  all  creditors,  citizens  of  Connecticut,  and  they  ought 
not  to  be  deprived  of  this  advantage  merely  because  the  debtor  is  him- 
self appointed  administrator.  .  .  .  Defendant's  plea  good.^ 


FAY  V.  HAVEN. 
Supreme  Judicial  Court  of  Massachusetts.     1841. 

[Reported  3  Metcalf,  109.] 

Debt  on  a  probate  bond,  dated  September  1,  1835,  given  by  Thomas 
Haven,  as  principal,  and  the  other  defendants,  as  sureties,  for  the  faithful 
performance  by  Haven  of  his  duties  as  administrator  of  the  estate  of 
Samuel  Livermore,  late  of  New  Orleans  in  the  State  of  Louisiana. ^ 

1  Tlie  appointment  of  an  ancillary  administrator  will  not  be  made  (in  the  absence 
of  a  statute  requiring  it)  if  it  is  not  necessary  for  the  proper  distribution  of  the  assets. 
Washburn's  Estate,  45  Minn.  242,  47  N.  W.  790.  The  principal  administrator  can- 
not demand  tlie  ajjpointment.     Li  re  Estate  of  Neubert,  58  S.  C.  469,  36  S.  E.  908. 

A  testator  may,  however,  name  two  executors,  one  to  act  in  each  of  two  States ;  and 
each  will  then  have,  in  tlie  State  in  which  he  is  named  to  act,  such  right  to  act  as  any 
executor  named.     Sherman  v.  Page,  21  Hun,  65. 

The  cases,  almost  without  exception,  treat  a  foreign  executor  and  administrator  in 
the  same  way.  The  few  cases  which  suggest  a  distinction,  in  some  resp-^cts,  between 
their  powers'  probably  do  not  represent  the  law.  See,  for  instance,  Winchester  i>. 
Bank,  2  O.  &  J.  80  ;  Grant  v.  Reese,  94  N.  C.  720.  —  Ed. 

2  Statement  of  facts  is  omitted.  —  Ed. 


SECT.    I.]  '  FAY    V.    HAVEN.  661 

Dewey,  J.  That  this  action  may  be  maintained  for  such  a  breach 
of  this  bond  as  will  authorize  a  judgment  for  nominal  damages,  seems 
to  us  to  be  very  clear.  The  Rev.  Sts.  c.  68,  §  25,  authorize  such  action, 
*'  if  any  executor  or  administrator  shall  neglect  to  render  and  settle  his 
accounts  in  the  probate  court  within  six  months  after  the  return  made 
by  the  commissioners,  or  after  the  final  liquidation  of  the  demands  of 
the  creditors,  or  within  such  further  time  as  the  judge  of  probate  shall 
allow  therefor,  so  as  to  delay  a  decree  of  distribution."  The  facts 
stated  in  the  case  show  such  neglect  of  the  administrator  to  render  and 
settle  his  accounts  within  the  time  limited  by  the  statute. 

It  was  suggested  by  the  defendants'  counsel,  that  an  executor  or 
administrator  is  not  liable  to  an  action  unless  he  has  neglected  to  ren- 
der and  settle  his  account,  after  having  been  first  cited  by  the  judge  of 
probate  to  render  it.  Such  is  the  provision  of  c.  67,  §  9,  providing  the 
remedy  for  neglect  to  render  and  settle  the  accounts  of  administrators 
in  cases  of  solvent  estates  ;  but  we  think  it  does  not  apply  to  cases  like 
the  present,  which  seem  to  be  specially  provided  for  in  c.  68,  §  25,  and 
where  the  mere  neglect  to  render  the  account,  within  the  period  pre- 
scribed by  the  statute,  subjects  the  administrator  to  a  suit,  without  any 
previous  citation  from  the  judge  of  probate. 

The  question  of  more  difficulty  in  the  present  case  is  that  which  arises 
upon  the  claim  of  the  plaintiff,  in  behalf  of  the  creditors  in  Massaclm- 
setts,  to  hold  the  defendant  responsible  upon  this  bond  for  certain 
property  of  said  Livermore,  deceased,  which  came  into  the  hands  of 
said  Haven  (the  principal  in  this  bond),  in  the  State  of  Louisiana,  by 
virtue  of  his  appointment  as  one  of  the  executors  of  said  Livermore, 
and  his  subsequent  appointment,  by  the  court  of  probate  there,  as  tutor 
to  his  children,  who  were  legatees  under  the  will. 

By  the  facts  stated  by  the  parties,  it  appears,  that  Samuel  Liver- 
more had  been  for  many  years  a  resident  in  New  Orleans,  and  had  his 
domicil  there  at  the  time  of  his  decease  ;  that  said  Haven  and  one 
Ogden  were  constituted  executors  of  his  will  and  duly  autliorized  to 
act,  as  such,  under  the  laws  of  Louisiana,  and  that  the  property,  for 
which  it  is  now  attempted  to  make  the  defendants  chargeable,  on  the 
bond,  to  the  plaintiff  as  judge  of  probate  for  the  county  of  Middlesex, 
is  the  avails  of  certain  personal  and  real  estate,  which  came  to  the 
hands  of  said  Haven  in  the  State  of  Louisiana,  under  the  authority  of 
the  Probate  Court  of  New  Orleans,  received  and  held  by  him,  either  in 
the  capacity  of  executor  in  Louisiana,  or  as  a  tutor  legally  constituted 
there,  to  hold  the  same  for  the  benefit  of  his  children,  or  to  a  small 
amount,  held  as  payment  of  a  legacy  to  his  wife  under  the  said  will. 
No  specific  property  of  said  Livermore  is  or  has  been  in  the  hands  of 
said  Haven  in  this  Commonwealth,  except  the  valuable  collection  of 
books  received  by  the  corporation  of  Harvard  College,  by  virtue  of  a 
specific  bequest  to  them  by  Mr.  Livermore  (and  which  the  executors 
transmitted  from  Louisiana),  and  certain  real  estate  which  was  duly 
returned  in  the  inventory  taken  here. 


652  ^^^   '^'-    HAVEN.  [chap.    XIV. 

It  is  ver}'  obvious  that  the  disposition  of  both  the  personal  and  real 
estate  of  Livermore,  the  avails  of  which  came  to  the  hands  of  Haven, 
was  to  be  regulated  by  the  Laws  of  Louisiana  ;  personal  estate  being 
always  to  be  disposed  of  according  to  the  lex  domicilii,  and  the  real 
estate  by  the  lex  loci  rei  sitce.  Story's  Conflict  of  Laws,  403,  404.  The 
administration  granted  in  Massachusetts  was  merely  ancillary,  and  the 
only  duty  devolving  upon  such  administrator  would  be  to  collect 
the  assets  here,  and  appropriate  so  much  of  the  avails  of  the  same  to 
the  payment  of  debts  due  to  our  citizens,  as  would  be  authorized 
by  the  general  solvency  or  insolvency  of  the  estate  of  the  deceased,  and 
remit  the  balance  to  the  place  of  principal  administration.  Davis  v. 
Estev,  8  Pick.  475.  It  has  been,  I  apprehend,  the  uniform  doctrine  of 
this  court,  that  any  other  administration  than  that  granted  where  the 
deceased  had  his  domicil  must  be  considered  as  an  ancillary  admin- 
istration. Stevens  v.  Gaylord,  11  Mass.  256.  Such  ancillary  admin- 
istrator would  not  lie  obliged  to  account  here  for  assets  received  in  the 
place  of  principal  administration,  although  he  had  filed  a  copy  of  the 
will  and  taken  letters  of  administration  in  this  Commonwealth.  Select- 
men of  Boston  V.  Boylston,  2  Mass.  384.  Carapliell  v.  Sheldon,  13 
Pick.  23.  But,  contrary  to  this  doctrine,  it  is  now  contended  that  the 
administrator  ma}-  be  required  to  account,  at  the  place  of  the  ancillary 
administration,  for  the  property  of  the  deceased  which  was  found  at 
the  place  of  his  domicil  and  principal  administration,  for  the  purpose 
of  subjecting  it  to  the  paj'ment  of  debts  due  to  creditors  in  Massa- 
chusetts ;  and  this  too  after  the  property  has  been  changed  in  its  specific 
character,  and  the  proceeds  thereof  have  been,  b}-  order  of  the  Probate 
Court  in  Louisiana,  vested  in  tlie  defendant,  Haven,  in  another  and 
different  capacity  from  that  of  executor. 

The  position,  thus  urged  b}'  the  counsel  for  the  plaintiff,  seems,  as 
alreadv  suggested,  at  variance  with  the  principles  which  are  recognized 
by  the  authorities  already  cited,  as  well  as  other  cases  that  may  be 
referred  to.  Richards  v.  Dutch,  8  Mass.  506  ;  Dawes  v.  Boylsto.n, 
9  Mass.  337  ;  Jennison  v.  Hapgood,  10  Pick.  78  ;  Vaughan  v.  Northup, 
15  Pet.  1. 

The  rule  seems  to  have  been  very  generally  sanctioned,  that  as  to 
the  property  in  the  hands  of  the  executor  or  administrator,  acquired 
without  the  jurisdiction  of  the  principal  administration,  he  is  to  be  held 
accountable  for  its  proper  application  only  to  the  legal  tribunals  of  the 
State  in  which  the  principal  administration  was  taken. 

The  questions  which  have  been  sometimes  raised,  and  which  have 
been  of  more  difficult  solution,  have  been  as  to  the  authority  of  the 
ancillary  administrator  to  retain  and  apply  the  property,  received  within 
bis  local  jurisdiction,  to  tlie  payment  of  debts  or  legacies  due  to  creditors 
and  legatees  residing  within  that  jurisdiction. 

Some  reliance  was  placed  by  the  counsel  for  tlie  plaintiff  upon  thu 
decision  of  the  Supreme  Court  of  New  York,  in  tlie  case  of  Campbell  v. 
Tousey,  7  Cow.  64,  where  it  was  held,  that  if  a  foreign  executor,  coming 


SECT.    I.]  FAY    V.    HAVEN.  663 

into  that  State,  without  filing  a  copy  of  the  will  and  taking  an  appoint- 
ment under  the  authoritj'  there,  should  intermeddle  with  the  goods  of 
the  deceased  in  New  York,  and  thus  make  himself  an  executor  de  son 
tort,  he  should  also  be  charged  with  the  assets  remaining  in  his  hands, 
though  received  in  a  foreign  country.  This  decision,  as  well  as  the 
general  question  of  conflicting  administrators,  is  considered  by  Mr. 
Justice  Story,  in  his  learned  commentaries  on  the  Conflict  of  Laws, 
424-429.  He  doubts  the  correctness  of  the  decision  in  Campbell  v. 
Tousey,  and  says  "  there  is  great  difficulty  in  supporting  it,  to  the 
extent  of  making  the  foreign  executor  or  administrator  liable,  in  such 
State,  for  assets  received  abroad  and  brought  into  the  State  by  him. 
It  is  not  easy  to  perceive  how  he  can  be  sued  in  such  State  for  assets 
in  his  hands  received  abroad  under  the  sanction  of  a  foreign  adminis- 
tration, and  by  the  authority  of  the  foreign  government  to  which  he  is 
accountable  for  all  such  assets." 

It  seems  to  be  highly  reasonable  and  proper  that  the  accountability 
of  the  administrator,  for  all  assets  received  under  an  appointment  in 
one  State,  should  be  exclusivelj-  under  the  laws  and  judicial  decisions 
of  the  State  conferring  upon  him  the  power  and  authorit}'  to  act  in  this 
behalf;  and  that  all  questions  as  to  the  faithful  or  unfaithful  discharge 
of  his  duties  as  such  administrator  should  be  limited  to  the  same  local 
jurisdiction.  If  it  were  not  so,  obviouslj-  great  confusion  would  arise, 
and  conflicting  decisions  might  be  made,  requiring  inconsistent  duties 
of  the  administrator.  Nor  can  we  think  that  the  omission  in  the 
statutes  of  Louisiana,  of  the  requisition  of  bonds  from  the  adminis- 
trator for  the  faithful  discharge  of  his  trust,  can  vary  the  general  prin- 
ciple. The  nature  and  extent  of  the  securitv  to  be  given  in  such  cases 
must  necessarily  be  regulated  by  the  local  law.  We  are  to  presume 
that  such  laws  are  in  force  in  Louisiana,  as  furnish  reasonable  security 
to  the  parties  in  interest,  and  that  in  some  form,  through  the  aid  of 
legal  process,  the  avails  of  the  estate  of  one  deceased  ma}-  be  reached, 
or  the  executor  be  restrained  in  any  attempt  to  withdraw  the  same,  or 
to  place  himself  be^-ond  the  jurisdiction  of  her  courts,  while  his  liabili- 
ties to  creditors  are  undischarged.  Indeed  the  records  of  the  court  of 
probate  of  New  Orleans,  in  this  case,  and  the  civil  code  of  Louisiana, 
to  which  we  have  been  referred,  both  show  various  proceedings  in  the 
cases  of  settlement  of  estates,  having  for  their  object  the  proper  appli- 
cation of  the  assets  to  the  pa3-ment  of  the  debts  of  deceased  persons. 
The  remedy,  it  is  true,  may  be  lost  b}'  delay  or  laches  of  the  creditor 
in  enforcing  his  claim,  and  the  proceedings  may  be  closed  in  a  shorter 
time  than  would  be  consonant  with  the  laws  of  Massachusetts  ;  but 
this  cannot  affect  the  general  principle  as  to  the  liabilities  of  the 
foreign  administrator  in  our  courts. 

Upon  the  whole  matter,  the  court  are  of  opinion  that  the  defendants 
are  not  liable  upon  this  bond  to  the  judge  of  probate  in  this  county, 
for  any  assets  received  in  the  State  of  Louisiana  ;  the  property  thus 
received,  having  been  already  administered  upon  in  that  State.     If  the 


664  ADAMS    V.    BATCHELDEB.  [CHAP.    XIV. 

settlement  of  the  estate  is  not  closed  there,  proceedings  may  be  insti- 
tuted there  against  the  legal  representatives  to  enforce  any  valid  claims 
existing  on  behalf  of  creditors.  If  not  enforced  in  due  time,  the 
creditors  may  have  lost  tlieir  remedy  by  their  own  laches. 

The  books  in  possession  of  Harvard  College  were  transmitted  to  the 
donees  from  Louisiana,  and  the  estate  at  the  place  of  principal  admin- 
istration being  solvent,  they  were  properly  transmitted  by  the  executors, 
agreeably  to  the  bequest  of  the  testator ;  and  this  being  a  proper  and 
legal  disposition  of  them  under  the  authority  and  laws  of  Louisiana, 
they  are  not  assets  to  be  accounted  for  by  the  administrator  in  this 
Commonwealth. 

The  administrator  is  not  to  be  charged  with  the  real  estate  returned 
'in  the  inventory,  or  be  made  liable  by  reason  of  any  neglect  to  procure 
license  to  sell  the  same  ;  this  court  having,  upon  an  application  duly 
made  by  him  for  such  license,  refused  to  grant  it.  Livermore  v.  Haven, 
23  Pick.  IIG.  The  result  is,  therefore,  that  the  plaintiff  is  entitled  to 
a  judgment  for  only  nominal  damages.^ 


ADAMS  V.  BATCHELDER. 
Supreme  -Judicial  Court  of  Massachusetts.     1899. 

[Reported  173  Massachusetts,  258.] 

Holmes,  J.  This  is  an  action  of  contract  brought  upon  a  New 
Hampshire  judgment  obtained  by  a  man  domiciled  in  New  Hampshire, 
upon  a  debt  contracted  in  New  Hampshire,  against  a  resident  of 
Massachusetts,  The  judgment  creditor  died,  and  the  present  plaintiff, 
also  a  resident  of  New  Hampshire,  was  appointed  his  administratrix 
there.  On  April  18,  1881,  the  plaintiff  was  appointed  ancillary  admin- 
istratrix in  Massachusetts.  On  January  21,  1891,  the  defendant 
received  a  discharge  in  insolvency  in  Massachusetts.  At  the  trial 
there  was  evidence  that  the  debt  never  had  been  paid,  but  the  judge 
ruled  that  the  discharge  was  a  bar  to  the  action.  The  case  is  here 
upon  an  exception  to  that  ruling. 

The  ruling  raises  the  question  whether  the  debt  is  to  be  regarded  as 
due  to  a  person  resident  in  Massachusetts,  within  the  meaning  of  Pub. 

1  Ace.  Preston  v.  Melville,  8  CI.  &  F.  1;  Lewis  v.  Grognard,  17  N.  J.  Eq.  425; 
Freeman's  Appeal,  68  Pa.  151  ;  Hamilton  v.  Carrin<,'ton,  41  S.  C  385.  19  S.  E.  616 
(but  see  Cureton  v.  Mills,  13  S.  C.  409).     Compare  Grant  v.  Reese,  94  N.  C.  720. 

If  without  securing  an  appointment  in  another  State  an  aduiinistrator  takes  assets 
there,  it  seems  clear  that  he  is  accountable  for  the  assets  to  the  court  which  appointed 
him.  McPike  v.  McPike,  111  Mo.  216,  20  S.  W.  12.  Contra,  Mothlan.l  v.  Wireman, 
3  Pen.  &  W.  185.  The  sureties  on  his  bond  have  also  been  held  accountable  for  such 
assets.  Andrews  v.  Avory,  14  Grat.  229.  Contra,  Fletcher  v.  Sanders,  7  Dana,  345 
(sureties  of  an  aucillary  administrator). 


SECT.    I.J  ADAMS   V.   BATCHELDER.  665 

Sts.  c.  157,  §  81.  The  defendant's  position  is  that,  as  the  debt  could 
not  be  collected  except  by  taiilug  out  ancillary  administration  here, 
it  must  be  taken  to  be  due  to  the  plaintitf  in  her  capacity  of  ancillary 
administratrix,  and  not  as  a  natural  person  ;  and  that,  as  that  office  has 
its  birth  and  Ufe  in  Massachusetts,  the  plaintirt"  in  that  capacity  has 
her  residence  here,  just  as  a  corporation  has  its  domicil  in  the  State 
which  created  it.  Bergn^r  &  Engel  Brewing  Co.  i;.  Dreyfus,  172  Mass. 
154.  But  this  argument  is  working  a  fiction  too  hard.  An  executor 
or  administrator  is  not  a  corporation  sole.  He  gets  his  title  or  his 
succession  to  the  rights  of  the  deceased  by  his  appointment,  it  is  true. 
Nowadays  he  holds  those  rights  in  a  fiduciary  capacity,  and  he  must 
account  for  what  he  receives.  But  there  is  no  absolute  separation 
of  his  artificial  from  his  natural  personality,  as  is  shown  by  the  fact 
that  a  suit  against  an  executor  may  end  in  a  judgment  de  bonis  pro- 
priis,  either  at  common  law  or  under  Pub.  Sts.  c.  166,  §  10,  and  very 
frequently  may  lead  to  a  personal  judgment  for  costs,  as  also  that  in 
general  his  contracts  as  such  bind  him  only  personally,  even  when 
he  is  entitled  to  indemnity  from  the  estate.  Durkin  v.  Langley,  167 
Mass.  577.  A  judgment  recovered  by  an  administrator  is  payable 
to  him  personally,  and  may  be  sued  on  by  him  in  another  State. 
Talmage  v.  Chapel,  16  Mass.  71.  And  it  has  been  held  that,  when 
a  chattel  is  taken  from  an  administrator  wrongfully,  he  may  sue  for  it 
in  another  State  into  which  it  has  been  carried.  Crawford  v.  Graves, 
15  La.  Ann.  243.  Story,  Confl.  of  Laws,  §  515.  Dicey,  Confl.  of  Laws, 
459,  460.  See  Commonwealth  v.  Griffith,  2  Pick.  11,  18.  What  is 
true  of  an  executor  is  even  more  plainly  true  of  an  ancillary  adminis- 
trator. And  as  one  person  can  have  but  one  domicil,  unless  the  law 
for  this  purpose  treats  the  woman  and  the  ancillary  administratrix  as 
two  persons,  the  plaintiff  is  a  resident  of  New  Hampshire,  since  no  one 
would  contend  that  her  residence  was  changed  for  all  purposes  by  her 
merely  accepting  an  appointment  here. 

In  the  present  case  there  is  also  another  consideration.  The  debt 
was  not  suspended  until  the  appointment  of  the  ancillary  administra- 
trix. It  was  the  property  of  the  principal  administratrix  so  far  that  a 
payment  to  her  would  have  been  a  bar  to  the  present  action  :  AVilkins 
V.  EUett,  9  Wall.  740;  s.  c.  108  U.  S.  256  ;  see  Story,  Confl.  of  Laws, 
§  515,  n. ;  Dicey,  Confl.  of  Laws,  461  ;  or  that  the  debt  could  have 
been  sued  for  and  collected  there  before  the  ancillary  letters  were 
issued,  and  that,  if  collected  in  Massachusetts,  it  would  be  transmitted 
to  New  Hampshire  and  accounted  for  there,  unless  there  happened  to 
be  local  claims  against  the  estate.  We  presume  that  the  right  to  sue 
the  debtor  in  New  Hampshire,  if  service  could  be  got  there,  was  not 
affected  by  the  ancillary  appointment.  As  is  said  in  Wilkins  v.  Ellett, 
108  U.  S.  256,  258,  the  objection  to  the  principal  administratrix's 
bringing  an  action  here  "  does  not  rest  upon  any  defect  of  the  admin- 
istrator's title  in  the  property,  but  upon  his  personal  inca|)acity  to 
sue  as  administrator  beyond  the  jurisdiction   which   appointed  him." 


666  STERN    V.    QUEEN.  [CHAP.    XIV. 

See  Hutchins  f.  State  Bank,  12  Met.  421,425;  Anthony  v.  Anthon}-, 
161  Mass.  343,  351,  352;  Swift,  C.  J.,  in  Slocum  v.  Sanford,  2  Conn. 
533,  535. 

Perhaps  this  branch  of  the  argument  so  far  is  not  unanswerable. 
But  there  is  the  further  fact  that  the  debt  already  had  been  reduced  to 
judgment.  Whatever  may  be  the  law  as  to  simple  contract  debts,  it 
•was  laid  down  three  centuries  ago,  and  still  is  repeated,  that  judgments 
are  bo)ia  notahilia  where  the  judgment  was  given.  As  applied  to  this 
case,  at  least,  we  may  accept  the  statement.  Sir  John  Needham's  case, 
in  note  to  Daniel  v.  Luker,  Dyer,  305  ;  Kegg  v.  Horton,  1  Lutw.  399, 
401 ;  Gold  V.  Strode,  3  Mod.  324  ;  Adams  v.  Savage,  Ld.  Raym.  854  ; 
Attorney-General  r.  Bouwons,  4  M.  &  W.  171,  191  ;  Holcomb  v. 
Phelps,  16  Conn.  127,  135;  1  Wms.  Saund.  274  a,  n.  3.  Taking  all 
the  elements  into  account,  it  seems  to  us  that  in  this  case,  if  ever,  •'  the 
[administratrix]  here  is  only  the  deputy  or  agent  of  the  [administra- 
trix] abroad."  Dawes  v.  Head,  3  Pick.  128,  141,  142.  See  also 
Merrill  v.  New  England  Ins.  Co.,  103  Mass.  245,  248. 

Whichever  of  the  foregoing  lines  of  thought  we  pursue,  we  are  led 
to  the  conclusion  that  the  debt  is  not  barred.  If  we  treat  the  debt  as 
due  to  the  ancillary  administratrix,  we  cannot  so  far  distinguish  between 
her  natural  and  her  artificial  person,  in  the  present  state  of  the  law,  as 
to  say  that  she  resides  in  Massachusetts  as  administratrix  when  as  a 
•woman  she  resides  in  New  Hampshire.  If  we  are  to  consider  the 
question  of  title  more  nicely,  the  debt  belongs  to  the  principal  admin- 
istratrix, although  she  may  not  receive  it  except  subject  to  local  debts 
of  the  estate.  iJxceptions  sustained. 


STERN  V.  QUEEN. 
High  Court  of  Jcstice,  Queen's  Bench  Division.     1896. 

[Reported  [1S96]  1  Queens  Bench,  211.] 

This  was  a  petition  of  right  brouglit  by  the  suppliants,  executors  of 
Baron  Herman  de  Stern,  for  a  return  of  the  sum  of  £8,187,  being  tiie 
amount  of  probate  duty  paid  upon  certain  shares  in  American  rail- 
way companies,  the  certificates  for  which  shares  were  in  England  at 
the  testator's  death. ^ 

Wright,  J.  In  this  matter  the  case  finds  that  the  certificates,  the 
value  of  which  is  in  question  in  this  petition  of  riglit,  were  documents 
of  title  held  by  the  shareholders  in  certain  foreign  companies,  which 
certificates  certify  that  tlic  person  therein  named  is  entitled  to  the  num- 
ber of  shares  named,    and   so  forth.     Upon  every  certificate  there  is 

1  This  short  statement  is  substituted  for  that  of  tlie  Rj[iorter.  Arguments  of  couu- 
sel  are  omitted.  —  Ed. 


SECT.    I.J  PINNEY   V.    McGREGORY.  667 

indorsed  a  form  of  transfer  and  a  power  of  attorney  in  blank.  Then 
paragraph  8  repeats  with  regard  to  this  case  most  of  the  judicial  state- 
ments of  fact  or  inferences  of  fact  which  were  drawn  in  the  House  of 
Lords  in  the  case  of  Colonial  Bank  v.  Cadj-,  15  App.  Cas.  267.  I  think 
that  the  true  inference  to  be  drawn  from  the  statements  made  in  the 
case  is  that  the  dut}'  has  properl}-  been  claimed  and  paid  upon  these 
documents.  It  is  not  a  matter  that  is  susceptible  of  an}'  lengthened 
statement ;  but  the  waj-  I  put  it  is  this.  There  is  in  this  country  with- 
in the  jurisdiction  of  the  Ordinary  (now  the  Probate  Court)  a  document 
the  existence  of  which  vouches  and  is  necessary'  for  vouching  the  title 
of  some  one  to  the  foreign  share,  so  that  in  the  absence  of  that  docu- 
ment no  one  at  all  could  establish  a  title  to  the  share.  It  is  found  by 
the  case  that  the  certificates  are  currentl}'  marketable  here  as  securities 
for  that  share  and  the  dividends  payable  on  that  share ;  it  is  found,  in 
fact,  that  the  delivery  of  the  certificate  in  this  countr}'  ipso  facto  affects 
the  title  in  a  sense  that  it  entitles  the  transferee  to  all  the  transferor's 
rights.  It  follows  that  the  certificate  itself  has  some  operative  power 
here,  and  it  seems  to  me  not  to  be  within  tlie  ancient  rule  that  a  simple 
contract  debt  or  mere  evidences  of  a  simple  contract  debt  are  supposed 
to  exist  onl}'  at  the  place  of  the  debtor's  residence.  It  being  a  mar- 
ketable security  operative,  though  not  completely  operative,  to  pass  the 
title,  and  having  a  marketable  value  here,  I  think  that  it  is  itself  a  docu- 
ment which  is  a  document  of  value  in  the  hands  of  the  executors  within 
thejurisdiction  of  the  Ordinary.  Therefore  I  think  that  the  Crown  is 
entitled  to  succeed. 

Kennedy,  J.     I  agree,  and  for  the  same  reasons. 

Judgment  accordingly. 


PINNEY  V.  McGREGORY. 
Supreme  Judicial  Court  of  Massachusetts.     1869. 

[Reported  102  Massachusetts,  186.] 

CoxTRACT  by  the  plaintiff  as  administrator  of  the  estate  of  Rufus  G. 
Pinne}',  late  of  Stafford  in  the  State  of  Connecticut,  upon  several  prom- 
issory notes  made  by  the  defendants,  payable  to  the  order  of  the  intes- 
tate and  overdue.  The  notes  were  found  in  Connecticut  after  the  death 
of  the  intestate.  The  plaintiff  was  appointed  administrator  by  the  pro- 
bate court  for  the  county  of  Hampden  in  this  Commonwealth.  One  of 
the  defendants  was  a  resident  of  the  county  at  the  time  administration 
was  granted,  but  not  at  the  death  of  the  intestate.  Tlie  judge  at  the 
trial  ruled  that  no  action  could  be  maintained  by  the  plaintiff  because 
the  probate  court  had  no  jurisdiction  ;  and  directed  a  verdict  for  the 
defendants.     If  this  ruling  was  correct,  judgment  was  to  be  entered 


()68  PINNEY   V.    M(  GREGORY.  [CHAP.    XIV. 

upon  the  verdict,  otherwise  the  verdict  to  be  set  aside  and  judgment 
entered  for  the  plaintiff.^ 

Gkay,  J.  .  .  .  We  prefer  to  rest  the  jurisdiction  of  the  Probate  Court 
upon  tlie  residence  of  a  debtor  to  the  intestate  in  this  county  at  the 
time  of  the  grant  of  administration. 

By  the  law  of  England,  simple  contract  debts  due  to  the  deceased  are 
bona  notabilia  in  the  diocese  where  the  debtor  resides.'^  It  is  said  in- 
deed in  the  text-books  of  approved  authority,  that  the  debtor  must 
have  resided  there  at  the  time  of  the  intestate's  death,  though  we  do 
not  find  that  this  has  been  expressly  adjudged.  1  Williams  on  Execu- 
tors, 279,  and  authorities  cited.  The  canons  of  1  James  I.  (1603) 
upon  the  subject,  however,  speak  of  the  deceased  being  ''  at  the  time  of 
his  death  "  possessed  of  goods  and  chattels  or  good  debts  in  any  otlier 
diocese  or  peculiar  jurisdiction  than  that  in  which  he  died.  lb.  267, 
268.  But  it  is  observable  that,  in  the  leading  cases  in  the  courts  of 
common  law,  in  which  the  administration  granted  in  one  county  was 
declared  void,  the  allegation  was  that  the  debtor  resided  in  another 
county  not  only  at  the  time  of  his  death,  but  also  ever  since,  or  at  the 
time  of  the  grant  of  administration.  Yeomans  v.  Bradshaw,  Garth. 
373  ;  s.  c.  3  Salk.  70,  164,  12  Mod.  107,  Comb.  392,  Holt,  42  ;  Hil- 
liard  v.  Cox,  1  Salk.  37  ;  s.  c.  2  Salk.  747,  1  Ld.  Raym.  562,  3  Ld. 
Raym.  313.     And  in  the  case  of  Yockney  v.  Foyster,  cited  and  ap- 

1  This  short  statement  is  substituted  for  that  of  the  Reporter.  Only  so  much  of 
the  opinion  is  given  as  deals  with  the  subject  of  jurisdiction  based  on  residence  of  the 
defendants. —  Ed. 

2  A  simple  contract  debt  is  assets  where  the  debtor  resides  :  Arnold  v.  Arnold,  62 
Ga.  627  ;  Burbank  v.  Payne,  17  La.  Ann.  15  ;  Emery  v.  Hildreth,  2  Gi-ay,  228  ;  Sayre 
V.  Helme,  61  Pa.  299  ;  and  this,  though  a  bill  or  note  has  been  given  for  the  amount 
of  it :  Yeoman  v.  Bradshaw,  Carth.  373,  3  Salk.  70  ;  Wyman  v.  Halstead,  109  U.  S. 
6.".4;  Slocum  v.  Sanford,  2  Conn.  533;  Chapman  v.  Fish,  6  Hill  554;  but  see  Mc- 
Namara  v.  McNamara,  62  Ga.  200;  Thorman  v.  Broderick,  52  La.  Ann.  1298,  27  So. 
735  ;  Goodlett  v.  Anderson,  7  Lea,  289.  So  of  a  judgment  debt.  Morefield  v.  Harris, 
126  N.  C.  626,  36  S.  E.  125  ;  Swancy  v.  Scott,  9  Humph.  327  ;  see  Du  Val  v.  Marshall, 
30  Ark.  230.  So  of  a  claim  to  a  share  of  the  profits  of  a  partnership.  Shaw's  Estate, 
81  Me.  207,  16  Atl.  662  (scmblc)  ;  Jones  v.  Warren,  70  Miss.  227,  14  So.  25.  So  of 
a  right  to  recover  damages.  Hartford  k  N.  H.  R.  R.  v.  Andrews.  36  Conn.  213  ; 
Missouri  Pacific  R.  R.  v.  Lewis,  24  Nob.  848  ;  contra,  Jeffersonville  R.  K.  v.  Swayne, 
26  Ind.  477  ;  Perry  v.  S.  J.  &  W.  R.  R.,  29  Kan.  420. 

A  bond,  on  the  otlier  hand,  is  assets  where  it  is  found.  Daniel  v.  Luker,  Dyer,  305  ; 
Barclift  v.  Treece,  77  Ala.  528  ;  Beers  v.  Shannon,  73  N.  Y.  292  ;  and  see  Grant  v. 
Rogers,  94  N.  C.  755.  In  Cooper  v.  Beers,  143  111.  25,  33  N.  E.  61,  it  was  held  that 
notes  and  bonds  found  within  a  State  were  not  "  property  in  this  State"  within  the 
meaning  of  a  statute.     See  Speed  i;.  Kelly,  59  Miss.  47. 

Shares  of  stock  in  a  corporation  are  usually  held  to  be  assets  where  the  stock-books 
an- kept.  Attorney-General  v.  New  York  Breweries  Co.,  [1898]  1  Q.  B.  205;  Gray- 
son V.  Robertson,  122  Ala.  330,  25  So.  229  :  Arnold  v.  Arnold,  62  Ga.  627  ;  Wa.sh- 
burn's  E.state,  45  Minn.  242,  47  N.  W.  790  {semhk).  In  Russell  v.  Hooker,  67  Conn. 
24,  34  Atl.  711,  they  were  held  to  be  assets  at  the  domicil  of  the  deceased,  where  they 
were  found. 

In  Epping  I'.  Robinson,  21  Fla.  36,  bills  and  notes  and  written  contracts  were  held 
bona  nutabilia  where  found.  —  Ed, 


SECT.    I.]  PINNEY   V.    McGREGORY.  669 

proved  by  Sir  John  NichoU  in  Scarth  v.  Bishop  of  London,  1  Hagg. 
Eccl.  636,  637,  in  which  the  only  effects  within  the  province  were  brought 
there  after  the  death  of  the  party,  Sir  William  Wynne  held  that,  if  the 
court  of  chancery  had  held  a  grant  of  probate  there  to  be  necessary  in 
order  to  file  a  bill  in  equity  to  recover  the  property-,  the  ecclesiastical 
court  "•  in  aid  of  justice  "  might  grant  letters  of  administration. 

Our  statute  declares  that  ''  the  Probate  Court  for  each  county  shall 
have  jurisdiction  of  the  probate  of  wills,  granting  administration  of  the 
estates  of  persons  who  at  the  time  of  their  decease  were  inhabitants  of 
or  resident  in  the  count)',  and  of  persons  who  die  without  the  State, 
leaving  estates  to  be  administered  within  such  count}-."  Gen.  Sts.  c. 
117,  §  2,  It  does  not  in  terms  say  "  leaving  estate  in  such  county  at 
the  time  of  their  decease."  The  section  embodies  the  Rev.  Sts.  c.  64, 
§  3,  and  c.  83,  §  5,  which  were  substantial  re-enactments  of  the  St.  of 
1817,  c.  190,  §§  1,  16.  In  Picquet,  Appellant,  5  Pick.  65,  the  court 
held  that  the  earliest  of  these  statutes  should  receive  a  liberal  construc- 
tion to  enable  the  representatives  of  deceased  foreign  creditors  to  col- 
lect the  debts  of  the  deceased  here  in  the  only  way  in  which  by  our  laws 
they  could  be  recovered,  that  is  to  say,  through  the  power  of  adminis- 
tration granted  by  the  laws  of  this  Commonwealth  ;  and  that  a  debt 
due  from  a  citizen  of  this  Commonwealth  to  a  foreign  subject  at  tlie 
time  of  his  death  should  therefore  be  deemed  estate  left  by  him  in  this 
Commonwealth,  within  the  meaning  of  that  statute.  The  same  rule  of 
construction  must  be  applied  to  this  case. 

Indeed  the  St.  of  1817,  c.  190,  §  16  (which  included  the  estates  of 
intestates  alread}-  deceased,  as  well  as  of  those  who  might  die  in  the 
future),  would  seem  to  point  to  the  time  of  a  petition  for  administration 
rather  than  the  time  of  the  death,  as  the  time  at  which  there  must  be 
estate  within  the  county,  in  order  to  give  jurisdiction  ;  for  the  words 
are,  "■  when  any  person  who  has  died  or  shall  die  intestate  without  the 
Commonwealth  shall  leave  estate  of  any  description  within  the  same  to 
be  administered,"  letters  of  administration  may  be  applied  for  as  if  he 
had  died  within  the  Commonwealth,  and  the  judge  of  probate  of  any 
county  "  wherein  such  estate  shall  be  found  "  shall  have  power  to  grant 
them.     But  it  is  not  necessary  to  rely  upon  so  narrow  an  argument. 

Before  that  statute,  the  probate  courts  of  the  Commonwealth  exer- 
cised the  jurisdiction  of  granting  administration  on  property  belonging 
or  debts  due  to  persons  residing  abroad,  in  order  to  enable  them  to  be 
collected  in  this  State,  because  without  such  appointment  no  suit  could 
be  brought  in  our  courts  for  the  assets  or  debts  of  the  deceased,  either 
in  the  courts  of  the  Commonwealth  or  of  the  United  States.  Goodwin 
V.  Jones,  3  Mass.  514  ;  Stevens  v.  Gaylord,  11  Mass.  256  ;  Picquet  v. 
Swan,  3  Mason,  469  ;  Noonan  v.  Bradley,  9  Wall.  394.  In  Dawes 
V.  Boylston,  9  Mass.  337,  and  Wheelock  v.  Pierce,  6  Cush.  288,  it 
seems  to  have  been  assumed  that  a  debtor  or  goods  of  the  intestate 
coming  or  being  brought  into  the  Commonwealth  after  the  death  of  the 
testator  would   give  jurisdiction  to  support  an  administration.      The 


670  WILKINS    V.    ELLETT.  [CHAP.    XIV. 

dictum  of  Mr.  Justice  Bigelow  in  Bowdoin  v.  Holland,  10  Cusb.  18, 
that  "  it  is  undoubtedly  true  that  if  the  deceased  bad  at  the  time  of  bis 
death  neither  domicil  nor  assets  within  the  Commonwealth,  the  judge 
of  probate  had  no  jurisdiction  in  the  premises,"  is  not  to  be  taken  in 
its  strictest  sense.  It  was  there  held  that  jyrima  facie  evidence  that  a 
deceased  nonresident  had  conveyed  real  estate  in  this  Commonwealth 
in  fraud  of  his  creditors  was  sufficient  to  warrant  the  grant  of  adminis- 
tration here,  even  if  no  similar  grant  had  been  made  in  the  State  of  his 
domicil ;  and  the  question  asked  by  the  learned  judge  upon  that  point 
is  equally  applicable  to  this.  "  If  the  will  is  never  proved  in  the  place 
of  the  testator's  domicil,  and  is  purposely  withheld  from  probate,  have 
creditors  in  this  State  no  means  of  procuring  administration  on  their 
deceased  debtor's  estate,  and  thereby  reaching  liis  property  here?" 
To  limit  the  power  of  granting  administration  to  cases  in  which  the 
goods  are  or  the  debtor  resides  in  the  Commonwealth  at  the  time  of  the 
death  of  the  intestate  would  be  to  deny  to  the  creditors  and  representa- 
tives of  the  deceased,  whether  citizens  of  this  or  of  another  State,  all 
remedy  whenever  goods  ai'e  brought  into  this  State,  or  a  debtor  takes 
up  his  residence  here,  after  the  death  of  the  intestate.  The  more  liberal 
construction  of  the  atatate  is  necessary  to  prevent  a  failure  of  justice.^ 


WILKINS   V.   ELLETT. 

Supreme  Court  of  the  United  States.     1883. 

[Reported  108  Uiiited  States,  256.] 

Gray,  J.  This  is  an  action  of  assumpsit  on  the  common  counts, 
brought  in  the  Circuit  Court  of  the  United  States  for  the  Western 
District  of  Tennessee.  The  plaintiff  is  a  citizen  of  Virginia,  and  sues 
as  administrator,  appointed  in  Tennessee,  of  the  estate  of  Thomas  N. 
Quarles.  The  defendant  is  a  citizen  of  Tennessee,  and  surviving  part- 
ner of  the  firm  of  F.  H.  Clark  &  Company.  The  answer  sets  up  that 
Quarles  was  a  citizen  of  Alabama  at  the  time  of  his  death  ;  that  the  sum 
sued  for  has  been  paid  to  William  Goodloe,  appointed  his  administrator 
in  that  State,  and  has  been  inventoried  and  accounted  for  by  him  upon  a 

1  Ace.  Saunders  V.  Weston,  7-i  Me.  85;  Low  v.  Horner,  10  Hawaii,  531.  So  ad- 
ministration may  be  granted  upon  chattels  brought  into  the  State,  whether  rightfully 
or  wrongfully,  after  the  death  of  the  owner.  Stearns  v.  Wright,  51  N.  H.  600  ;  In  re 
Hughes,  95  N.  Y.  55  ;  Morefield  v.  Harris,  126  N.  C.  626,  36  S.  E.  125  (scmble)  ;  Green 
V.  Rugely,  23  Tex.  539.     Contra,  Embry  v.  Millar,  1  A.  K.  Marsh,  300. 

But  where  the  propei'ty  is  taken  into  the  foreign  State  by  an  agent  of  the  domiciliary 
administrator  for  a  temporary  jjurpose,  as  for  sale  or  transmission,  the  State  into  which 
it  is  taken  can  exercise  no  control  over  it  as  against  the  domiciliary  administrator. 
Crescent  City  Ice  Co.  v.  Stafford,  3  Woods  94,  Fed.  Cas.  3387  ;  Wells  v.  Miller,  45  111. 
382  ;  In  re  Schley's  Estate,  11  Phila.  139.  This  is  clearly  true  where  the  goods  are 
returned  or  sold  before  an  ancillary  administrator  is  appointed.  Christy  v.  Vest,  36 
la.  285  ;  Martin  v.  Gage,  147  Mass."  204,  17  N.  E.  310.  —  Ed. 


SECT.    I.]  WILKINS   V.    ELLETT.  671 

final  settlement  of  his  administration  ;  and  that  there  are  no  creditors 
of  Qiiarles  in  Tennessee.  The  undisputed  facts,  appearing  by  the  bill 
of  exceptions,  are  as  follows  :  — 

Qiiarles  was  born  at  Richmond,  Virginia,  in  1835.  In  1839  his 
mother,  a  widow,  removed  with  him,  her  only  child,  to  Courtland, 
Alabama.  They  lived  tliere  togetlier  until  1856,  and  she  made  her 
home  there  until  her  death  in  1864:.  In  1856  he  went  to  Memphis, 
Tennessee,  and  there  entered  the  employment  of  F.  H.  Clark  & 
Company,  and  continued  in  their  employ  as  a  clerk,  making  no  invest- 
ments himself,  but  leaving  his  surplus  earnings  on  interest  in  their 
hands,  until  January,  1866,  when  he  went  to  the  house  of  a  cousin  in 
Courtland,  Alabama,  and  while  there  died  by  an  accident,  leaving 
personal  estate  in  Alabama.  On  the  27th  of  January,  1866,  Goodloe 
took  out  letters  of  administration  in  Alabama,  and  in  February,  1866, 
went  to  Memphis,  and  there,  upon  exhibiting  his  letters  of  administra- 
tion, received  from  the  defendant  the  sum  of  money  due  to  Quarles, 
amounting  to  S3, 455.22  (which  is  the  same  for  which  this  suit  is 
brought),  and  included  it  in  his  inventory,  and  in  his  final  account, 
which  was  allowed  by  the  Probate  Court  in  Alabama.  There  were  no 
debts  due  from  Quarles  in  Tennessee.  All  his  next  of  kin  resided  in 
Virginia  or  in  Alabama  ;  and  no  administration  was  taken  out  on  his 
estate  in  Tennessee  until  June,  1866,  when  letters  of  administration 
were  there  issued  to  the  plaintiff. 

There  was  conflicting  evidence  upon  the  question  whether  tho 
domicil  of  Quarles  at  the  time  of  his  death  was  in  Alabama  or  in  Ten- 
nessee. The  jury  found  that  it  was  in  Tennessee,  under  instructions, 
the  correctness  of  which  we  are  not  prepared  to  affirm,  but  need  not 
consider,  because  assuming  them  to  be  correct,  we  are  of  opinion  that 
the  court  erred  in  instructing  the  jury  that,  if  the  domicil  was  in 
Tennessee,  they  must  find  for  the  plaintiff ;  and  in  refusing  to  instruct 
them,  as  requested  by  the  defendant,  that  the  payment  to  the  Alabama 
administrator  before  the  appointment  of  one  in  Tennessee,  and  there 
being  no  Tennessee  creditors,  was  a  valid  discharge  of  the  defendant, 
without  reference  to  the  domicil. 

There  is  no  doubt  that  the  succession  to  the  personal  estate  of  a 
deceased  person  is  governed  by  the  law  of  his  domicil  at  the  time  of 
his  death  ;  that  the  proper  place  for  the  principal  administration  of  his 
estate  is  that  domicil ;  that  administration  ma}-  also  be  taken  out  in  any 
place  in  which  he  leaves  personal  property  ;  and  that  no  suit  for  the 
recovery  of  a  debt  due  to  him  at  the  time  of  his  death  can  be  brought 
by  an  administrator  as  such  in  any  State  in  which  be  has  not  taken  out 
administration. 

But  the  reason  for  this  last  rule  is  the  protection  of  the  rights  of 
citizens  of  the  State  in  which  the  suit  is  brought ;  and  the  objection 
does  not  rest  upon  any  defect  of  the  administrator's  title  in  the  property, 
but  upon  his  personal  incapacity  to  sue  as  administrator  beyond  the 
jurisdiction  which  appointed  him. 


672  WILKINS   V.    ELLETT.  [CHAP.    XIV. 

If  a  debtor,  residing  in  another  State,  comes  into  tlie  State  in  which 
the  administrator  has  been  appointed,  and  there  pays  him,  the  payment 
is  a  valid  discharge  everywhere.  If  the  debtor  being  in  that  State, 
is  there  sued  bj-  the  administrator,  and  judgment  recovered  against  iiim, 
the  administrator  may  bring  suit  in  liis  own  name  upon  tliat  judgment 
in  tiie  State  wliere  tiie  debtor  resides.  Tahnage  v.  Cliapel,  IG  Mass. 
71  ;  Biddle  v.  Willcins,  1  Pet.  68G. 

Tlie  administrator,  by  virtue  of  his  appointment  and  authority'  as 
sucli,  olitains  the  title  in  jjromissory  notes  or  other  written  evidences  of 
debt,  held  by  the  intestate  at  the  time  of  his  deatli,  and  coming  to  ,tlie 
possession  of  the  administrator  ;  and  may  sell,  transfer,  and  indorse  the 
same;  and  the  purchasers  or  indorsees  may  maintain  actions  in  their 
own  names  against  the  debtors  in  another  State,  if  the  debts  are 
negotiable  promissory  notes,  or  if  the  law  of  the  State  in  which  the 
action  is  brought  permits  the  assignee  of  a  chose  in  action  to  sue  in  his 
own  name.  Harper  v.  Butler,  2  Pet.  239;  Shaw,  C.  J.,  in  Pand  ik 
Hubbard,  4  Met.  252,  258-260  ;  Petersen  v.  Chemical  Bank,  32  N.  Y. 
21.  And  on  a  note  made  to  the  intestate,  pa3able  to  bearer,  an 
administrator  appointed  in  one  State  maj*  sue  in  his  own  name  in  an- 
other State.  Barrett  v.  Barrett,  8  Greenl.  353  ;  Pobinson  v.  Crandall, 
9  Wend.  425. 

In  accordance  with  these  views,  it  was  held  by  this  court,  when  this 
case  was  before  it  after  a  former  trial,  at  which  the  domicil  of  the 
intestate  appeared  to  have  been  in  Alabama,  that  the  paj-ment  in 
Tennessee  to  the  Alabama  administrator  was  good  as  against  the  ad- 
ministrator afterwards  appointed  in  Tennessee.  Wilkins  v.  EUett,  9 
^Yall.  740. 

Tlie  fact  that  the  domicil  of  the  intestate  has  now  been  found  by 
the  jury  to  be  in  Tennessee  does  not  appear  to  us  to  make  any  difference. 
There  are  neither  creditors  nor  next  of  kin  in  Tennessee.  Tlie  Ala- 
bama administrator  has  inventoried  and  accounted  for  the  amount  of 
this  debt  in  Alabama.  The  distribution  among  the  next  of  kin, 
whether  made  in  Alabama  or  in  Tennessee,  must  be  according  to  the 
law  of  the  domicil ;  and  it  has  not  been  suggested  that  there  is  any  dif- 
ference between  the  laws  of  the  two  States  in  that  regard. 

The  judgment  must  therefore  be  reversed,  and  the  case  remanded 
with  directions  to  set  aside  the  verdict  and  to  order  a        uVew  trials 

1  Ace.  Selleck  v.  Rusco,  46  Conn.  370;  Citizens'  Nat.  Bank  v.  Sharp,  53  Md. 
521  ;  Dexter  v.  Berge,  76  Minn.  216,  78  N.  W.  1111  ;  Riley  v.  Moseley,  44  Miss.  37; 
Parsons  v.  Lyman,  20  N.  Y.  103;  Gray's  Appeal,  116  Pa.  256;  11  Atl.  66.  Contra, 
Vaughn  v.  Barret,  5  Vt.  333.  As  against  later  claims  of  domestic  creditors  such  pay- 
ment is  not  a  good  discharge.     Ferguson  v.  Morris,  67  Ala.  389. 

But  where  an  English  company  transferred  shares  of  an  American  testator  to  his 
executor,  the  latter  was  held  executor  dc  son  tort  and  liable  to  probate  duty  in  England. 
Attorney-General  v.  New  York  Breweries  Co.,  [1898]  1  Q.  B.  205.  Contra,  Citizens' 
Nat.  Bank  v.  Sharp,  53  Md.  521.  And  where  a  foreign  administrator  took  assets,  he 
was  held  in  an  early  case  as  exrxutor  de  son  tort  in  favor  of  the  creditors.  Riley  v. 
Riley,  3  Day  74.     See  Hopkins  v.  Town,  4  B.  Mon.  124.  —  Ed. 


SECT.    I.]  SHAKESPEARE   V.    FIDELITY    INSURANCE,   ETC.  67< 


SHAKESPEARE  v.  FIDELITY  INSURANCE,   TRUST  &  SAFE 

DEPOSIT  CO. 

Supreme   Court   of    Pennsylvania.     1881. 

[Reported  97  Pennsylvania,  173.] 

This  was  an  action  of  trover  by  the  administrator  de  bonis  non,  cum 
testamento  annexo  of  the  estate  of  John  B.  Ackley  deceased,  against 
The  Fidelity  Insurance,   Trust  and  Safe  Deposit  Compan}'  of  Phila- 
delphia, for  certain  United  States  coupon  bonds  deposited  with  the  de- 
fendants by  the  testator   in  his  lifetime  for  safe-keeping  on  special 
certificate  of  deposit  which  by  its  terms  must  be  surrendered  upon  with- 
drawal of  the  deposit.     The  testator  left  the  certificate,  at  his  death,  in 
NewJerse}',  hisdomicil,  audit  was  presented  by  the  New  Jersey  execu- 
tor to  the  defendant,  and  the  bonds  surrendered  in  exchange  for  it.     The 
plaintiff  having  been  appointed  administrator  in  Pennsylvania,  demanded 
the  bonds,  and  upon  refusal  brought  this  suit.     The  court  entered  judg- 
ment for  the  defendant  upon  the  point  reserved,  viz..     Is  the  plaintiff 
entitled  to  recover  upon  these  facts  ?   The  plaintiff  took  a  writ  of  error.^ 
Sharswood,  C.  J.     We  do  not  consider  that  the  United  States  coupon 
bonds  which  are  the  subjects  of  this  controversy  were,  at  the  time  of 
the  death  of  the  decedent,  any  part  of  his  estate  in  this  Commonwealth. 
The  defendants  were  the  mere  depositaries  of  the  bonds  for  safe-keeping. 
They  were,  therefore,  in  the  possession  of  the  decedent.     He  held  the 
certificate  of  their  deposit.     The  defendants  were  bound  to  restore  the 
bonds  at  any  time  to  the  lawful  holder  of  the  certificate.     It  was  as  if 
the  bonds  had  been  placed  in  a  fire-proof  of  the  defendants,  of  which  the 
decedent  possessed  the  key.     In  point  of  fact,  the  certificate  was  in  the 
actual  possession  of  the  widow  of  the  decedent  in  New  Jersey.     She 
surrendered  it  as  she  was  bound  to  do,  to  the  foreign  executor.    She  could 
not  have  withheld  it.     The  New  Jersey  executor  could  have  sued  her, 
and  compelled   its  delivery  to  him.     The  Pennsylvania  administrator 
certainly  could  not.     By  the  terms  of  the  certificate  it  might  be  trans- 
ferred b}'  assignment  indorsed  thereon  and  approved  by  the  company. 
The  foreign  executor  could  have  so  assigned  it,  and  his  assignee  could 
have  sued  for  the  delivery  of  the  bonds,  in  his  own  name.     The  assign- 
ment would  have    been  a  sale  of  the  bonds,  which    were  payable  to 
bearer,  and  passed  b}'  delivery.     Whoever  showed  a  legal  title  to  the 
certificate  had  a  right  to  the  possession  of  the  bonds.     The  case,  then, 
is  within  the  principle  of  Moore  v.  Fields,  6  Wright,  471,  where  it  was 
held  that,  where  a  debt  fixed  by  a  decree  or  judgment  of  the  court  of 

^  This  short  statement  is  substituted  for  that  of  the  Reporter.  Part  of  the  opinion, 
in  which  the  statute  fixing  the  powers  of  foreign  executors  was  held  not  to  apply,  is 
omitted.  —  Ed. 

■13 


674  ,     AMSDEN   V.    DANIELSON.  [CHAP.    XIV. 

another  State  in  favor  of  a  foreign  administrator,  is  due  by  citizens  of 
Pennsylvania  to  the  estate  of  a  decedent,  the  administrator  of  the  fo^ 
eign  domicil  may  sue  for  and  recover  it  in  his  own  name. 

Judgment  affirmed} 


AMSDEN   V.   DANIELSON. 

Supreme  Court  of  Rhode  Island.     1895 

[Reported  18  Rhode  Island,  787.] 

Stiness,  J.  The  plaintiff,  executor  of  the  will  of  Lucretia  C. 
Danielson,  late  of  Providence,  deceased,  sues  the  defendant,  a  resident 
of  Killingly,  Connecticut,  upon  a  promissory  note,  made  by  him,  dated  at 
said  Killingly,  and  payable  to  the  testatrix.  The  action  was  com- 
menced January  12,  1894,  by  an  attachment  of  real  estate  of  the 
defendant  in  the  city  of  Providence  in  this  State.  It  appears  by  the 
defendant's  plea  that  after  said  will  was  probated  here,  and  since 
the  commencement  of  this  suit,  a  copy  of  the  will  was  recorded  in 
Killingly  and  William  H.  ChoUar  was  appointed  administrator,  who  has 
qualified,  and  to  whom  the  defendant  has  made  payment  of  the  amount 
due  on  the  note.  To  this  the  plaintiff  replies  that  there  was  no  property 
in  Connecticut  except  a  trifling  amount  of  furniture,  which  had  been 
fully  administered  by  him  before  the  application  to  record  the  will  in 
Killingly  ;  that  there  were  no  creditors  in  Connecticut ;  that  the  de- 
fendant, knowing  the  intention  of  the  plaintiff  to  bring  suit  here,  induced 
the  plaintiff  to  forbear  his  suit  by  promising  to  pay  the  debt  on  a  cer- 
tain day,  and  thereupon,  contriving  to  prevent  said  attachment  and  to 
evade  the  payment  of  the  note,  took  advantage  of  the  plaintiff's  forbear- 
ance and  procured  the  recording  of  the  will  and  the  appointment  of 
Chollar  as  administrator  in  Connecticut ;  that  the  note  is  and  has  been, 
since  the  death  of  the  testatrix,  in  the  plaintiff's  possession,  upon  which 
the  defendant  paid  him  the  sum  of  $234.20  in  October,  1893,  and  that 
the  defendant  had  notice  of  the  attachment  before  he  made  the  payment 
to  Chollar  as  administrator.     The  defendant  demurs  to  the  replications. 

The  main  question  raised  by  the  pleadings  is  whether  under  these 
circumstances  the  suit  can  be  maintained  in  Rliode  Island,  after  the 
payment  to  the  administrator  in  Connecticut.  We  think  it  can  be 
maintained.  First  the  fact  is  set  up  that  this  was  a  voluntary  and  col- 
lusive payment,  which  upon  denuirrer  must  betaken  to  be  true.  Wliile 
a  party  will  be  protected  from  paying  a  second  time  that  which  he  lias 
once  in  good  faith  been  compelled  to  pay,  it  is  clear  that  these  facts  do 

1  In  McCully  v.  Cooper,  114  Cal.  258,  40  Pac.  82,  whciv  a  iow'v^n  administnitor 
liaviricj  a  certificate  of  dejiosit  demaiided  jiaynu'iit  iiml  was  refused,  it  was  held  to  be 
his  duty  to  surrender  the  certificate  to  the  domestic  administrator,  that  the  latter  might 
sue  ujion  it.  —  Ed. 


SECT.    I.]  AMSDEN    V.    DANIELSON.  675 

not  make  such  a  case.  A  person  cannot  oust  the  court  of  one  State 
of  jurisdiction  by  a  coUusive  judgment,  and  much  less  by  a  voluntary 
payment,  in  another.  So  it  has  been  held  that  where  a  man,  by  wilful 
default,  has  suffered  judgment  to  go  against  him  as  garnishee,  in  an- 
other State,  when  he  might  have  prevented  it,  a  payment  is  no  bar 
in  the  State  where  a  suit  upon  the  claim  had  been  previously  commenced. 
Whipple  V.  Bobbins,  97  Mass.  107  ;  Wilkinson  v.  Hall,  6  Gray,  568. 
See  also  Hull  v.  Blake,  13  Mass.  153,  157,  and  Stevens  v.  Gaylord, 
11  Mass.  256. 

Passing  over  the  question  whether  the  promise  of  the  defendant 
made  a  new  cause  of  action,  about  which  there  seems  to  be  little  room 
for  doubt,  we  come,  second,  to  the  main  question  which  has  been 
argued,  viz.,  whether  the  executor  in  Rhode  Island  can  sue  at  all  for 
the  amount  due  upon  the  note.  The  argument  is  that  the  note  was  pay- 
able in  Killingly,  the  domicil  of  the  defendant,  and  hence  its  proceeds 
were  assets  in  Connecticut  and  not  in  Rhode  Island.  This  argument  is 
sustained  by  Finney  v.  McGregory,  102  Mass.  186  ;  Abbott  v.  Coburn, 
28  Vt.  663  ;  and  Wyman  v.  Halstead,  109  U.  S.  654.  Admitting  that 
the  note  was  payable  in  Killingly,  the  fact  does  not  control  this  case.  If 
it  were  necessary  to  bring  suit  upon  it  in  Connecticut  of  course  an 
administrator  would  be  appointed  there.  But  it  does  not  follow  that  it 
cannot  be  collected  elsewhere.  The  plaintiff  having  the  note,  and  find- 
ing property  of  the  defendant  in  this  State,  had  as  much  riglit  to  pro- 
ceed to  collect  it  here,  as  though  it  had  been  his  own  debt.  It  would 
be  a  most  absurd  rule  of  law  which  would  require  him  to  go  to  another 
State,  record  the  will,  secure  the  appointment  of  an  administrator  and 
go  through  all  the  requirements  of  a  probate  court  in  order  to  bring  a 
suit  where  possibly  there  might  be  no  property,  when  he  could  attach 
property  here  and  secure  his  judgment  without  trouble.  The  cases 
cited  by  the  defendant  do  not  hold  this.  Slocum  v.  Sanford,  2  Conn. 
533,  appears  to  have  been  a  case  where  the  defendant,  in  1813,  had 
proved  his  claim  against  the  estate  of  the  payee,  before  insolvent 
commissioners  in  Rhode  Island,  fi'om  which  the  amount  of  the  note 
sued  upon  had  been  deducted  and  the  administrator  in  Rhode  Island 
had  given  him  a  discharge  from  it  before  the  suit  was  brought  in  Con- 
necticut, but  certainly  before  the  trial  in  1816,  wherein  this  fact  was 
held  to  be  a  good  defence.  Undoubtedlj'  the  bona  fide  settlement  of  a 
debt  with  a  foreign  administrator  is  a  bar.  In  Stevens  v.  Gaylord,  11 
Mass.  256,  the  defendant  had  been  appointed  administrator  in  Connec- 
ticut before  an  administrator  had  been  appointed  and  suit  brought  in 
Massachusetts.  It  is  indeed  held  in  both  these  cases  that  the  debt 
was  assets  in  the  State  where  the  debtor  resided,  and  this  is  the  point 
to  which  they  are  cited.  But  that  is  not  the  question  before  us.  As- 
suming this  to  be  so,  the  question  is  whether  the  administrator  may 
collect  the  debt  in  another  State  if  he  has  the  chance  to  do  so.  Upon 
this  question  we  have  no  doubt.  It  is  well  settled  that  ^  bona  fide 
voluntary  payment  to  a  foreign  administrator  is  a  good  discharge  of  a 


676  AMSDEN    V.    DANIELSON.  [CHAP.    XIV. 

flebt:  Mackay  v.  Saint  Mary's  Church,  15  R.  I.  121  ;  and  if  this  be  so, 
an  involuntary  judgment,  based  upon  an  attachment  of  property,  cannot 
be  less  valid.  As  said  by  Wells,  J.,  in  Merrill  r.  New  England  Ins. 
Co.,  103  j\Iass,  245,  248  :  "  Having  possession  of,  and  a  legal  title  to,  the 
instrument,  or  evidence  of  the  demand,  and  finding  the  debtor  or  his 
property  wiihin  the  jurisdiction  of  his  appointment,  he  may  enforce  it 
there,  without  the  necessity  of  any  resort  to  the  foreign  jurisdiction. 
The  debtor  is  equally  responsible  in  either,  if  means  of  enforcing  pay- 
ment can  be  reached."  The  same  doctrine  was  announced  in  Perkins 
V.  Stone,  18  Conn.  270,  274,  where  debtors  resident  in  Massachusetts 
were  sued  by  an  administrator  in  Connecticut.  "  Had  it  been  necessary 
for  the  plaintiff  to  go  into  the  State  of  Massachusetts  to  bring  his 
action,  it  is  conceded  that  he  must  have  taken  out  letters  there,  to 
enable  him  to  sue  in  his  representative  capa(;it3-.  But  as  he  is  under 
no  necessitj-  of  invoking  the  aid  of  the  courts  of  that  State,  his  case  is 
not  brought  within  tlie  operation  of  the  rule  which  precludes  an  ad- 
ministrator ai)pointed  in  one  State  from  suing  in  the  courts  of  another." 
The  case  which  comes  most  closely  to  opposing  these  cases  is  that  of 
Pond  V.  Makepeace,  2  Met.  114.  There,  a  Rhode  Island  administrator 
had  brought  suit  in  Massachusetts  and  obtained  judgment  b}'  default, 
under  which  execution  was  levied  on  real  estate,  and  it  was  sold  in 
satisfaction  of  the  judgment.  It  was  held  that  the  suit  was  no  bar  to 
a  subsequent  suit  b}'  a  Massachusetts  administrator,  because  the  Rhode 
Island  administrator  had  no  power  to  sue  in  that  State  and  so  could 
pass  no  title  to  the  real  estate  under  the  levy  and  sale.  But  that  is  not 
like  this  case.  Here,  the  plaintiff  is  suing  in  Rhode  Island,  the  State 
in  which  he  holds  his  letters  testamentar}'. 

We  see  no  reason  why  he  may  not  so  sue.  The  cases  we  have  quoted 
from  sustain  the  right  and  we  know  of  none  which  deny  it.  The  reason 
upon  which  the  right  is  based  is  satisfactory  and  we  therefore  decide 
that  the  plaintiff  has  that  right  under  the  pleadings  in  this  case. 

The  demurrers  of  the  defendant  in  the  plaintiff's  replications  are 
overruled.^ 

^  In  spite  of  the  doctrine  that  the  existence  of  a  promissory  note  given  for  a  debt 
does  not  alter  the  situs  of  the  debt,  which  is  assets,  for  jjurpose  of  administration,  at 
the  domicil  of  the  debtor,  the  courts  appear  to  uphold  a  payment  only  to  such  ad- 
ministrator as  can  produce  the  note.  Thus  :  1.  Payment  to  the  administrator  of  the 
maker's  State,  without  surrender  of  the  note,  is  not  a  legal  discharge  as  against  the 
domiciliary  administrator  who  has  the  note.  McCord  v.  Thompson,  92  Ind.  565; 
Amsdcn  v.  Daniclson,  19  R.  I.  533,  35  Atl.  70  (affirming  the  decision  above  after  with- 
drawal of  the  demurrer  and  rejoinder  fded  denying  collusion);  St.  John  v.  Hodges, 
9  Baxt.  334.  See  Bull  v.  Fuller,  78  la.  20,  42  N.  \V.  572,  where  payment  to  a  domicil- 
iary administrator  without  surrender  of  the  note  was  upheld  against  tlie  ancillary  ad- 
ministrator with  the  note,  on  the  ground  that  no  creditor  of  the  estate  was  interested, 
and  "  to  compfd  a  second  payment,  and  re([uire  the  debtor  to  seek  repayment  from  the 
administrator  in  Vermont,  when  the  money  is  already  in  the  hands  of  a  re])resentative 
of  the  estate,  merely  in  the  interest  of  a  double  administration  would  indeed  be  a  bur- 
lesque upon  the  administration  of  justice.'' 

2.    Payment  to  the  domiciliary  administrator  who  has  uot  the  note  is  not  a  legal 


SECT.   I.]      MERRILL   V.   NEW   ENGLAND    MUT.    LIFE   INS.    CO.  677 

MERRILL  V.   NEW  ENGLAND   MUTUAL  LIFE 
INSURANCE  CO. 

Supreme  Judicial  Court  of  Massachusetts.    1869. 

[Reported  103  Massachusetts,  245.] 

Contract  by  the  plaintiff  as  administrator  of  the  estate  of  Howard 
M.  Merrill,  on  a  polic}'  of  insurance  issued  by  the  defendants  upon  the 
life  of  the  intestate.  The  answer  alleged  that  the  defendants  had  been 
sued  on  the  policy  in  Illinois  by  the  administrator  of  Merrill  appointed 
in  that  State.  Merrill  was  domiciled  in  Illinois  ;  the  policy  was  pledged 
by  him  to  the  plaintiff  as  security  for  a  loan  which  had  not  been  paid. 
The  defendant  was  a  Massachusetts  corporation.^ 

"Wells,  J.  There  can  be  no  doubt  that  the  appointment  of  the 
administrator  in  Massachusetts  was  legal  and  proper.  A  debt  due  to 
the  intestate  from  an}'  party  having  a  domicil  in  this  State,  or  any  de- 
mand or  right,  requiring  legal  authority  for  its  enforcement,  is  sufficient 
to  give  jurisdiction  for  such  an  appointment.  Gen.  Sts.  c.  117,  §  2  ; 
rinney  v.  McGrcgory,  102  Mass.  186;  Picquet,  Appellant,  5  Pick.  65; 
Emery  v.  Hildreth,  2  Gray,  228.  Such  administration  is  auxiliary  only, 
when  the  domicil  of  the  intestate  was  elsewhere  at  the  time  of  his  de- 
cease, if  there  is  an  administrator  at  the  place  of  domicil.  It  extends  to 
all  assets  found  within  the  State  ;  and,  within  the  jurisdiction  where 
granted,  it  is  exclusive  of  all  other  authorit}'.  The  administrator  ap- 
pointed at  the  place  of  domicil  of  the  deceased  is  the  principal  admin- 
istrator ;  and  personal  securities,  in  the  possession  and  control  of  the 
intestate  at  the  time  of  his  decease,  vest  in  him.  He  can  do  no  legal 
act  for  their  collection  in  another  jurisdiction,  without  an  ancillary  ap- 
pointment there.  And,  if  another  has  already  been  appointed  auxili- 
ar}'  administrator,  the  collection  can  be  made,  within  that  jurisdiction, 
only  through  him.  But  the  principal  administrator  may  always  dispose 
of  or  collect  such  securities,  if  he  can  do  so  without  being  obliged  to 
resort  to  the  domicil  of  the  debtor.  Hutchins  v.  State  Bank,  12  Met. 
421.  Having  possession  of,  and  a  legal  title  to,  the  instrument,  or 
evidence  of  the  demand,  and  finding  the  debtor  or  his  property  within 

discharge  as  against  the  administrator  of  the  maker's  State  who  has  the  note.     Young 
V.  O'Neal,  3  Sneed,  55  ;  and  see  Riley  v.  Moseley,  44  Miss.  37. 

3.  Payment  to  the  domiciliary  administrator  who  holds  and  surrenders  the  note  is  a 
good  bar  to  a  suit  previously  brought  by  the  administrator  of  the  maker's  State  who 
has  not  tho  note.  Thorman  v.  Broderick,  52  La.  Ann.  1298,  27  So.  735  ;  Goodlett  v. 
Anderson,  7  Lea,  286.  See  Mcllvoy  v.  Alsop,  45  Miss.  365,  where  the  administrator  of 
the  maker's  State  was  allowed  to  foreclose  a  lien  upon  land  in  that  State  given  to 
secure  the  payment  of  the  note,  though  the  note  was  in  the  hands  of  the  foreign  domi- 
ciliary administrator  who  refused  to  surrender  it.  —  Ed. 

1  This  short  statement  of  facts  is  substituted  for  that  of  the  Reporter.     Arguments 
of  coiinsel  are  omitted. —  Ed. 


673         MERRILL   V.    NEW   ENGLAND    MDT.    LIFE   INS.    CO.      [CHAP.    XIV. 

the  jurisdiction  of  his  appointment,  he  may  enforce  it  there,  without  the 
necessity  of  any  resort  to  the  foreign  jurisdiction.  The  debtor  is 
equally  responsible  in  either,  if  means  of  enforcing  payment  can  be 
reached. 

The  appointment  by  the  insurance  company  of  a  general  agent,  with 
authority  to  accept,  in  behalf  of  the  principal,  service  of  legal  process 
in  Illinois,  subjects  the  defendant  to  the  suit  brought  by  the  principal 
administrator  in  the  courts  of  that  State.  Gillespie  v.  Commercial  In- 
surance Co.,  12  Gray,  201.  As  that  suit  was  first  brought,  and  appar- 
ently embraces  the  whole  cause  of  action,  so  that  a  judgment  therein 
would  merge  all  liabilities  of  the  defendant  upon  the  policy,  we  should 
be  inclined  to  hold  that  it  was  exclusive  of  any  other  remedy,  so  that 
no  action  could  be  prosecuted  in  any  other  court  upon  the  same  con- 
tract at  the  same  time,  if  the  administrator  in  Illinois  had  then  had  the 
legal  title  and  possession  of  the  policy,  or  the  absolute  right  of  posses- 
sion. Whipple  V.  Robbins,  97  Mass.  107;  Newell  v.  Newton,  10 
Pick.  470;  Wallace  r.  McConnell,  13  Pet.  136;  Embree  v.  Hanna, 
5  Johns.  101  ;  American  Bank  v.  Rollins,  99  Mass.  313. 

It  is  said  by  Mr.  Justice  Dewey  in  Colt  v.  Partridge,  7  Met.  574, 
that  "whether  a  plea  in  abatement  that  another  action  between  the 
same  parties,  and  for  the  same  cause,  is  pending  in  another  State,  is 
good,  has  not  been  decided  here."  It  is  also  said  by  Mr.  Justice 
Foster  in  American  Bank  r.  Rollins,  that  the  doctrine  of  that  case  and 
of  Wallace  r.  McConnell,  Embree  r.  Hanna,  and  Whipple  v.  Robbins, 
"  constitutes  an  important  exception  to  the  ordinary  rule  that  Us  psn- 
dens  in  a  foreign  court  is  not  a  good  plea." 

The  present  case  does  not  depend  upon  the  ordinary  rule  in  regard  to 
lis  ^yendens;  nor  is  it  within  the  exception  to  that  rule,  if  the  decisions, 
above  referred  to,  do  constitute  an  exception.  The  administrator 
in  Illinois  and  the  administrator  in  Massachusetts  are  not  the  same 
party.  They  are  not  even  in  privity  with  each  other.  Low  v.  Bartlett, 
8  AUen.  259  ;  Ela  r.  Edwards.  13  Allen,  48.  The  authority  and  right 
of  each  is  independent  and  exclusive  within  the  jurisdiction  of  his  own 
appointment.  If,  therefore,  the  policy  had  been  in  the  legal  custody 
and  control  of  the  principal  administrator,  the  institution  of  proceed- 
ings for  the  collection  of  its  proceeds  by  him.  in  the  courts  of  Illinois, 
and  jtu-isdiction  of  the  defendant  oi-  its  proi)erty  obtained  thereon, 
would  have  been  such  an  appropriation  of  the  claim  as  a  part  of  the 
assets  of  the  estate  subject  to  administration  there,  as  would  have 
excluded  the  ancillary  administration  from  any  authority  over  it. 

But,  upon  the  facts  stated,  we  are  satisfied  that  the  intestate  had 
parted  with  the  possession  of  the  policy,  ui)on  a  valuable  and  legal  con- 
sideration, in  his  lif(.'time  ;  sj  that,  at  his  decease,  he  had  no  right  of 
possession,  and  none  passed  to  his  .administrator,  except  subject  to 
such  rights  as  had  been  conferred  by  the  pledge  and  delivery  of  the 
policy  by  the  intestate  to  his  uncle  Thomas  T.  Merrill.  The  agreed 
statement  shows    a  distinct  and  uneciuivocal  pledge  of  the  policy  to 


SECT.    I.]       MERRILL    V.    NEW    ENGLAND    MUX.    LIFE    INS.    CO.  679 

secure  the  intestate's  note  for  seven  hundred  dollars,  given  for  money 
lent  to  him  by  Thomas  T.  Merrill  upon  the  assurance  and  condition 
that  it  should  be  so  secured.  The  policy  was  delivered  in  pursuance 
of  that  agreement,  and  remained  in  the  possession  of  Thomas  T. 
Merrill  until  he  was  appointed  administrator.  This  was  sufficient  to 
constitute  a  good  pledge  of  the  instrument,  giving  to  the  pledgee  an 
equitable  interest  in  the  proceeds  of  it.  Angell  on  Insurance,  §§  o27- 
340;  Palmer  v.  Merrill,  6  Cash.  282;  Dunn  o\  Snell,  15  Mass.  481  ; 
Currier  v.  Howard,  14  Gra}',  511. 

In  that  state  of  facts,  if  tlie  principal  administrator  had  himself 
received  the  ancillary  appointment  in  Massachusetts,  he  could  not  have 
reclaimed  the  polic}'  from  the  hands  of  Thomas  T.  Merrill  without  pay- 
ment of  the  note  in  redemption  of  the  pledge.  It  is  unnecessary  to  con- 
sider now,  whether,  beyond  this,  the  claim  of  the  parents  of  the  intestate 
would  be  protected  against  the  general  interests  of  the  estate.  It  is 
sufficient  that  there  was  a  right  of  possession  in  Thomas  T.  Merrill, 
superior  to  that  of  the  intestate  or  his  administrator,  and  which  he  might 
pass  over  to  the  administrator  in  Massachusetts  upon  such  terms  as  he 
saw  fit,  consistent  with  his  limited  rights.  His  interest  in  the  policy  is 
not  a  mere  order  for  a  part  of  the  proceeds,  but  extends  to  the  whole 
polic}'  alike.  With  his  concurrence  the  auxiliar}-  administrator  may 
maintain  a  suit  and  collect  the  proceeds  of  the  policy.  Without  it 
neither  he  nor  the  principal  administrator  could  control  the  possession 
or  collect  the  proceeds.  The  pledge  makes  it  no  longer  a  question  of 
jurisdiction,  as  affected  by  priority  of  suit,  comit}-  between  the  States, 
or  otherwise,  but  one  merely  of  the  right  of  the  respective  parties 
claiming  an  interest  in  the  policy.  The  right  of  the  plaintiff  in  this 
suit  is  superior  to  that  of  the  principal  administrator  in  Illinois,  because 
he  represents  the  equitable  interest  and  right  of  immediate  possession 
and  control  of  the  pledgee,  as  well  as  the  legal  capacity  to  sue,  which 
remains  in  the  representatives  of  tlie  estate  of  Howard  M.  Merrill. 
That  legal  right  to  sue  is  held  by  the  administrators  of  Howard  M. 
Merrill,  wherever  appointed,  in  trust  for  the  benefit  of  the  equitable 
assignee  of  the  claim.  The  assignee  is  entitled  to  control  an}'  suit 
brought  for  its  recovery.  His  right  would  be  protected  bj'  the  courts 
against  any  attempt  of  tiie  administrators  to  collect  or  release  the 
demand  in  disregard  of  his  interests.  Jones  r.  Witter,  13  Mass.  304; 
Eastman  r.  Wright,  6  Pick.  316:  Grover  i\  Grover,  24  Pick  261; 
R(jckwood  r.  Brown,  1  Grav,  261  ;  Bates  i\  Kempton,  7  Gra}',  382. 
Upon  the  same  principle,  it  would  be  equally  protected  against  pre- 
judice from  any  attempt  to  anticipate  him  bv  means  of  a  suit  instituted 
by  such  administrator  in  his  own  behalf  and  without  recognition  of  the 
rights  of  the  assignee.  Within  the  same  jurisdiction,  the  respective 
rights  of  the  assignor  and  assignee  ma}-  be  readily  adjusted,  and  suits 
controlled.  The  difflcultv  arises  from  the  existence  of  suits  in  separate 
and  independent  jurisdictions.  There  is  a  class  of  decisions,  referred  to 
by  the  defendant,  particularly  affecting  questions  of  jurisdiction  between 


680  HARVEY  V.    RICHARDS.  [CHAP.  XIV. 

the  federal  and  State  courts,  to  the  effect  that  a  subject-matter  once 
brought  within  the  jurisdiction  of  a  court  of  general  jurisdiction, 
whether  by  suit  in  personam  or  proceeding  in  rem,  or  even  b}-  process 
of  attachment,  is  in  the  custody  of  that  court,  and  cannot  be  withdrawn 
or  controlled  by  any  process  or  proceeding  of  any  other  court.  But 
that  doctrine  is  explained  and  narrowly  limited  by  Mr.  Justice  Miller 
in  Buck  v.  Colbath,  3  Wall.  334.  It  does  not  apply  to  this  case,  for 
reasons  already  indicated ;  because  the  policy,  having  been  pledged 
and  delivered  to  another  in  the  lifetime  of  the  intestate,  was  never  in 
the  legal  possession  of  his  administrator  in  Illinois,  and  therefore  was 
never  properly  brought  within  the  jurisdiction  of  the  courts  in  that 
State,  either  as  assets  subject  to  administration,  or  as  a  cause  of  action 
which  the  administrator  there  could  maintain.  He  could  not,  by  com- 
mencing a  suit  there,  transfer  to  those  courts  the  determination  of  the 
rights  of  the  pledgee,  so  as  to  compel  him  to  seek  them  by  intervening 
in  such  suit.  The  pledgee  had  an  independent  title,  accompanied  by 
possession  of  the  policy ;  and  by  bill  in  equity  in  his  own  name,  or  by 
suit  in  the  name  of  the  administrator,  in  Massachusetts,  could  enforce 
his  claim.  Neither  the  administrator  in  Massachusetts  nor  the  admin- 
istrator in  Illinois  would  be  allowed  to  defeat  the  prosecution  of  such  a 
suit.  Against  either  administrator,  seeking  to  collect  the  amount  of 
the  policy  by  other  proceedings  or  means,  the  insurance  company  have 
a  sufficient  defence.  That  defence  stands  not  merely  upon  the  juris- 
diction and  judgment  of  the  court,  but  equally  well  upon  the  title  of 
the  pledgee,  yielded  to  by  the  insurance  company  without  suit.^  .... 
Upon  the  agreed  statement,  being  satisfied  that  the  plaintiff,  as 
administrator  of  the  intestate's  estate  in  Massachusetts,  and  represent- 
ing also  the  equitable  interest  and  possessory  right  of  the  pledgee  of 
the  policy,  is  entitled' to  its  control  and  collection,  in  preference  to  the 
principal  administrator  in  Illinois,  we  feel  bound  to  render  judgment 
accordingly  for  the  amount  due  from  the  defendant  by  the  terras  of  the 
policy.  Judgment  for  the  plaintiff.'^ 


HARVEY  V.  RICHARDS. 
Circuit  Couut  of  the  United  States.     1818. 

[Reported  1  Mason,  381.] 
Story,  J.     The  question  which  has  now  been  argued  lies  at  the  very 
foundation  of  the  plaintiff's  suit,  and  is  of  great  importance  and  no  in- 

1  Part  of  the  opinion,  in  wliich  the  effect  of  the  assignment  is  discussed,  is  omitted. 
—  Ed. 

2  But  see  Steele  v.  Conn.,  Gen.  L.  I.  Co.,  31  App.  Div.  389,  52  N.  Y.  Supp.  373 
(affirmed  160  N.  Y.  703).  A  New  York  man  whose  life  was  insured  in  a  Connecticut 
com{)any  pledged  his  yiolicy  to  the  company  in  Connecticut  and  died.  His  adminis- 
trator in  New  York  brought  suit  ;  then  the  company  voluntarily  paid  the  Connecticut 
administrator.     This  payment  was  lield  no  bar  to  the  New  York  suit. —  Ed. 


SECT.    I.]  HARVEY   V.   KICHARDS. 


681 


considerable  difficulty.  I  have  taken  time  to  consider  it ;  and  after  a 
full  consideration  of  all  the  authorities,  commented  on  with  so  much 
learning  and  ability  b}-  the  counsel,  I  am  now  to  pronounce  the  result 
of  m}-  own  judgment  on  the  case. 

For  the  purposes  of  the  argument,  it  is  assumed  or  conceded  that 
the  testator  (dying  intestate  as  to  the  residue  of  his  estate,  of  which 
distribution  is  now  sought)  was  at  his  decease  domiciled  at  Calcutta, 
in  the  East  Indies  ;  that  liis  will  has  been  duly  proved,  and  adminis- 
tration there  taken  upon  his  estate  by  liis  executor ;  that  the  defendant 
has  under  the  directions  of  tluit  executor  taken  administration  of  the 
testator's  estate  in  Massachusetts,  and  in  virtue  thereof  has  received  a 
large  sum  of  money,  which  now  remains  in  his  hands  ;  that  no  part  of 
this  money  is  wanted  at  Calcutta  for  the  payment  of  any  debts  or  lega- 
cies under  the  will;  and  that  the  plaintiff  is  a  citizen  of  Rhode  Island, 
and  domiciled  there  ;  and  as  one  of  the  next  of  kin  of  the  testator  is 
entitled  to  a  moiety  of  the  undevised  residue  of  the  testator's  estate. 
The  question  then  is,  whether,  under  these  circumstances,  this  court  as 
a  court  of  equity  can  proceed  to  decree  an  account  and  distribution  of 
the  property  so  in  the  hands  of  tlie  defendant,  or  is  bound  to  order  it 
to  be  remitted  to  Calcutta,  to  be  distributed  by  the  proper  tribunal 
there. 

There  are  some  points  involved  in  the  argument  which  may  be  dis- 
posed of  in  a  few  words.  In  the  first  place  the  distribution,  whether 
made  here  or  abroad,  must  be  according  to  the  law  of  the  place  of  the 
testator's  domicil.  This,  although  once  a  question  vexed  with  much 
ingenuity  and  learning  in  courts  of  law,  is  now  so  completely  settled  by 
a  series  of  well  considered  decisions,  that  it  cannot  be  brought  into 
judicial  doubt.  In  the  present  case,  the  law  of  Calcutta,  or  rather  of 
the  province  of  Bengal,  is,  as  I  apprehend,  the  law  of  England  ;  and 
as  that  is  the  same  as  the  law  of  Massachusetts,  the  distribution  would 
be  the  same  as  if  the  testator  had  died  domiciled  here.  In  the  next 
place,  the  court  of  chancery  has  an  ancient  and  settled  jurisdiction  to 
decree  an  account  and  distribution  of  a  testator's  and  an  intestate's 
estate,  on  the  application  of  the  legatees  or  next  of  kin  ;  and  supposing 
this  to  be  a  fit  case  for  the  application  of  its  authorit}-,  the  present 
suit  would  fall  completely  within  that  jurisdiction.  In  the  next  place, 
the  equity  powers  and  authorities  of  the  courts  of  the  United  States  are, 
in  cases  within  the  limits  of  their  constitutional  jurisdiction,  co-equal 
and  co-extensive,  as  to  rights  and  remedies,  with  those  of  the  court  of 
chancery.  The  present  is  a  suit  between  citizens  of  different  States 
over  whom  this  court  has  an  unquestionable  right  to  entertain  jurisdic- 
tion ;  and  it  will  follow  of  course,  that  the  plaintiff  is  entitled  to  the 
relief  she  prays  for,  if  it  be  competent  and  proper  for  any  court  of 
equity  to  grant  it. 

Having  disposed  of  these  preliminar}'  points,  we  may  now  return  to 
the  consideration  of  the  great  question  in  controversy.  Stated  in  broad 
terms  it  comes  to  this,  whether  a  court  of  equity  here  has  competent 


682  HARVEY    V.    RICHARDS.  [CHAP.    XIV. 

authority  to  decree  distribution  of  intestate  property  collected  under  an 
administration  granted  here,  the  intestate  having  died  domiciled  abroad, 
and  the  distribution  being  to  be  made  according  to  the  law  of  his  for- 
eign domicil.  The  counsel  for  the  defendant  deny  such  authority, 
under  any  circumstances  ;  the  counsel  for  the  plaintiff  as  strenuously 
assert  it. 

This  is  a  question  involving  the  doctrines  of  national  comit}',  or, 
what  may  be  more  fitly  termed,  international  law.  And  looking  to  it 
as  a  question  of  principle,  it  would  not  seem  to  be  attended  with  any 
intrinsic  difficult}-.  The  property'  is  here,  the  parties  are  here,  and  the 
rule  of  distribution  is  fixed.  What  reason  then  exists  vfhy  the  court 
should  not  proceed  to  decree  according  to  the  rights  of  the  parties? 
Whv  should  it  send  our  own  citizens  to  a  foreign  tribunal  to  seek  that 
justice  which  it  is  in  its  own  power  to  administer  without  injustice  to 
an}'  other  person?  I  sa}'  without  injustice,  because  it  may  be  admitted 
that  a  court  of  equity  ought  not  to  be  the  instrument  of  injustice,  and 
that  if  in  the  given  case  such  would  be  the  effect  of  its  interposition,  it 
ought  to  withhold  its  arm.  This,  however,  would  be  an  objection,  not 
to  the  general  authorit\',  but  to  the  exercise  of  it  under  particular  cir- 
cumstances. The  argument,  however,  goes  the  length  of  denying  tlie 
existence  of  that  authority,  whatever  may  be  the  circumstances  of  the 
case.  Yet  cases  ma}'  be  readily  imagined  in  which  it  might  not  be 
inequitable  to  interfere,  nay,  in  which  there  might  be  very  cogent 
reasons  for  interference.  Suppose  there  are  no  debts  abroad,  and  no 
heirs  or  legatees  abroad,  but  all  are  here,  and  apply  to  the  court  for  a 
decree  of  distribution,  is  the  court  bound  to  remit  for  the  vain  purpose 
of  putting  the  legatees  or  distributees  to  great  expense  and  delay  in 
seeking  their  rights  in  a  foreign  tri^bunal?  Suppose  two  executors  are 
appointed  by  the  testator,  one  abroad  and  one  here  (and  such  cases  are 
not  uncommon),  and  the  bulk  of  the  property  is  collected  here,  and  all 
the  legatees  are  here,  shall  the  court  direct  the  domestic  executor  to 
remit  the  whole  property  to  the  foreign  executor  because  it  is  to  be 
distributed  according  to  the  law  of  the  foreign  domicil?  Suppose  fur- 
ther, the  executor  here  is  himself  the  residuary  legatee,  or,  in  case  of 
intestacy,  the  administrator  here  is  the  next  of  kin  and  entitled  to  the 
surplus,  shall  he  be  required  to  remit  the  property  abroad,  that  he  may 
be  there  decreed  to  receive  it  again?  Suppose  legacies,  payable  out  of 
particular  funds  here,  or  a  specific  legacy  of  property  here,  shall  not  the 
legatee  be  entitled  to  recover  of  the  administrator  or  executor  here, 
because  the  testator  was  domiciled  in  a  foreign  country?  Suppose  a 
legacy  to  charitable  uses  in  this  country,  good  by  our  law,  but  which, 
from  motives  of  policy,  the  courts  of  the  foreign  country  decline  to  en- 
force, shall  it  be  said  that  our  courts  are  bound  to  enforce,  by  remit- 
ting the  property  there,  a  policy  by  which  they  are  injured?  Whatever 
may  be  thought  of  the  last  case,  there  can  be  no  doubt  that  tlie  others 
present  circumstances  where  equity  would  strongly  persuade  us  that 
it  would  be  the  duty  of  our  courts  to  entertain  jurisdiction  and  decide 


SECT.    I.]  HARVEY    T.    RICHARDS. 


683 


on  the  rights  of  the  parties.  There  are  many  other  cases  in  which  it 
would  seem  fit  to  vindicate  and  assert  the  proper  rights  of  our  own  cit- 
izens and  our  own  laws.  This  very  case,  under  one  aspect,  would  have 
pi'esented  a  question  of  which  our  own  tribunals  might  as  justly  have 
claimed  an  exclusive  cognizance,  and  which,  I  trust,  they  would  have  de- 
cided with  as  much  impartiality  as  the  tribunals  of  the  testator's  dom- 
icil.  Major  Murra}'  was  an  American  citizen,  born  in  Rhode  Island  ; 
and  if  he  left  no  lawful  heirs  (as  has  been  argued  in  a  former  part 
of  this  case)  his  property  here,  supposing  he  had  acquired  no  foreign 
domicil,  would  have  undoubtedly  fallen  as  an  escheat  to  that  State ; 
and  it  would  deserve  consideration  whether  the  change  of  domicil 
would  work  any  alteration  in  that  respect.  Under  such  circumstances, 
would  it  be  proper  to  send  the  State  of  Rhode  Island  to  solicit  its  rights 
from  a  foreign  tribunal  in  the  East  Indies? 

I  One  objection  urged  against  the  exercise  of  the  authority  of  the  court 
is,  that  as  national  comity  requires  the  distribution  of  the  property  ac- 
cording to  the  law  of  the  domicil,  the  same  comity  requires  that  the 
distribution  should  be  made  in  the  same  place,  j  This  consequence, 
however,  is  not  admitted  ;  and  it  has  no  necessary  connection  with  the 
preceding  proposition.  The  rule,  that  distribution  shall  be  according 
to  the  law  of  the  domicil  of  the  deceased  is  not  founded  merf^lj'  "p*^" — 
the  notion  that  movables  have  no  situs,  and  therefore  follow  the  per- 
son  of  the  proprietor,  even  interpreting  that  maxim  in  its  true  sense, 
that  personal  property  is  subject  to  that  law  which  governs  the  person 
of  the  owner.  Nor  is  it,  perhaps,  founded  upon  the  presumed  intention 
of  the  deceased,  that  all  his  property  should  be  distributed  according 
to  the  law  of  the  place  of  his  domicil  with  which  he  is  supposed  to  be 
best  acquainted  and  satisfied  ;  for  the  rule  will  prevail  even  against  the 
express  intention  of  the  deceased,  unless  the  mode  in  which  that  inten- 
tion is  expressed  would  give  it  legal  validity  as  a  will.  It  seems,  in- 
deed, to  have  had  its  origin  in  a  more  enlarged  policy,  founded  upon  the 
general  convenience  and  necessities  of  mankind  ;  and  in  this  view  the 
maxim  above  stated  flows  from,  rather  than  guides,  the  application  of  that 
policy.  Tiie  only  reason  wh}'  any  nation  gives  effect  to  foreign  laws 
within  its  own  territory  is  the  endless  embarrassment  which  would 
otherwise  be  introduced  in  its  own  intercourse  with  foreign  nations. 
The  rights  of  its  own  citizens  would  be  materialU'  imj)aired,  and,  in 
many  instances,  totally  extinguished,  b}-  a  refusal  to  recognize  and  sus- 
tain the  doctrines  of  foreign  law.  The  case  now  under  consideration 
is  an  illustration  of  the  perfect  justice  and  wisdom  of  this  general  prac- 
tice of  nations.  A  person  ma}'  have  movable  property  and  debts  in 
various  countries,  each  of  which  may  have  a  different  system  of  succes- 
sion. If  the  law  rei  sitce  were  generally  to  prevail,  it  would  be  utterly 
impossible  for  any  such  person  to  know  in  what  manner  his  property 
would  be  distributed  at  his  death,  not  only  from  the  uncertainty  of  its 
situation  from  its  own  transitory  nature,  but  from  the  impracticability 
of  knowing,  with  minute    accuracy,  the  law   of   succession   of  every 


68-i  HARVEY    V.    RICHARDS.  [CHAP.    XIV. 

country  in  which  it  might  then  happen  to  be.  He  would  be  under  the 
same  embarrassment  if  he  attempted  to  dispose  of  his  property  by 
a  testament ;  for  he  could  never  foresee  where  it  would  be  at  his  death. 
Kay  more,  it  would  be  in  the  power  of  his  debtor,  by  a  mere  change  of 
his  own  domicil,  to  destroy  the  best  digested  will;  and  the  accident  of 
a  moment  might  destroy  all  the  anxious  provisions  of  an  excellent 
parent  for  his  whole  family.  Nor  is  this  all.  The  nation  itself  to 
which  the  deceased  belonged  might  be  serioush-  affected  by  the  loss 
of  his  wealth  from  a  momentary  absence,  although  his  true  liome  was 
in  the  centre  of  its  own  territor}'.  These  are  great  and  serious  evils 
pervading  every  class  of  the  community,  and  equally  affecting  every 
civilized  nation.  But  in  a  maritime  nation,  depending  upon  its  com- 
merce for  its  glory  and  its  revenue,  the  mischief  would  be  incalculable. 
The  common  and  spontaneous  consent  of  nations,  therefore,  established 
this  rule  from  the  noblest  policy,  the  promotion  of  general  convenience 
and  happiness,  and  the  avoiding  of  distressing  difficulties,  equally  sub- 
versive of  the  public  safety  and  private  enterprise  of  all.  It  flowed 
from  the  same  spirit  that  dictated  judicial  obedience  to  the  foreign  com- 
missions of  the  admiralty.  Sab  mutuce  vicissitudinis  obtentu,  damns 
jyetimusque  vicissim,  is  the  language  of  the  civilized  world  on  this  sub- 
ject. There  can  be  no  pretence  that  the  same  general  inconvenience 
or  embarrassment  attends  the  distribution  of  foreign  effects  according 
to  the  foreign  law  by  the  tribunals  of  the  country  where  they  are  situ- 
ate. Cases  have  been  already  stated  in  which  great  inconvenience 
would  attend  the  establishment  of  any  rule  excluding  such  distribution. 
It  may  be  admitted  also,  that  there  are  cases  in  which  it  would  be 
highly  convenient  to  decline  the  jurisdiction  and  remit  the  parties  to 
ihe  forum  domicUli.  Where  there  are  no  creditors  here,  and  no  heirs 
or  legatees  here,  but  all  are  resident  abroad,  there  can  be  no  doubt 
that  a  court  of  equity  would  direct  the  remittance  of  the  property  upon 
the  application  of  any  competent  party. 

The  correct  result  of  these  considerations  upon  principle  would  seem 
to  be,  that  whether  the  court  here  ought  to  decree  distribution  or  remit 
the  property  abroad,  is  a  matter,  not  of  jurisdiction,  but  of  judicial  dis- 
cretion, depending  upon  the  particular  circumstances  of  each  case. 
That  there  ought  to  be  no  universal  rule  on  the  subject,  but  that  every 
nation  is  bound  to  lend  the  aid  of  its  own  tribunals  for  the  purpose  of 
enforcing  the  rights  of  all  persons  having  title  to  the  fund,  when  such 
interference  will  not  be  i)roductive  of  injustice  or  inconvenience,  or  con- 
flicting equities. 

It  is  farther  objected,  that  a  rule  which  is  to  depend  for  its  applica- 
tion upon  the  particular  circumstances  of  each  case,  is  too  uncertain  to 
ho  considered  a  safe  guide  for  general  practice.  But  this  objection 
affords  no  solid  ground  fen-  declining  the  jurisdiction,  since  there  is  an 
infinite  variety  of  cases  in  which  no  general  rule  has  been  or  can  be 
laid  down,  as  to  legal  or  equitable  relief,  in  the  ordinary  controversies 
before  judicial  tribunals,     in  many  of  these  the  difficulty  is  iutriusic  in 


SECT.    I.]  HARVEY   V.   RICHARDS.  685 

the  subject-matter ;  and  where  a  general  rule  cannot  easil}'  be  extracted, 
each  case  must,  and  indeed  ought  to,  rest  on  its  own  particular  circum- 
stances. The  uncertainty,  tlierefore,  is  neither  more  nor  less  than  be- 
longs to  many  other  complicated  transactions  of  human  life  where  the 
law  administers  relief  ex  ceqico  et  bono. 

Another  objection,  addressed  more  pointedly  to  a  class  of  cases  like 
the  present,  is  the  difficulty  of  settling  the  accounts  of  the  estate,  ascer- 
taining the  assets,  what  debts  are  sperate,  what  desperate,  and,  finallj", 
ascertaining  what  is  the  residue  to  be  distributed,  and  who  are  the  next 
of  kin  entitled  to  share.  And  to  add  to  our  embarrassment,  we  are 
told  that  we  cannot  compel  the  foreign  executor  to  render  an}-  account 
in  our  courts.  I  agree  at  once  that  this  cannot  be  done  if  he  is  not 
here  ;  but  I  utterly  deny  that  the  administrator  here  cannot  be  com- 
pelleu  .L^  account  to  any  competent  court  for  all  thi;  assets  which  he 
has  received  under  the  authorit}'  of  our  laws.  And  if  the  foreign  exec- 
utor chooses  to  lie  by,  and  refuses  to  render  any  account  of  the  foreign 
funds  in  his  hands,  so  far  as  to  enable  the  court  here  to  ascertain 
whether  the  funds  are  wanted  abroad  for  the  payment  of  debts  or  lega- 
cies or  not,  he  has  no  right  to  complain  if  the  court  refuses  to  remit 
the  assets  and  distributes  them  among  those  who  may  legally  claim 
them.  And  as  to  settling  the  estate,  or  ascertaining  who  are  the  dis- 
tributees, there  is  no  more  difficulty  than  often  falls  to  our  lot  in  many 
cases  arising  under  the  ordinary  prol)ate  proceedings. 

All  these  objections  are,  in  fact,  reasons  for  declining  to  exercise  the 
jurisdiction  in  particular  cases,  rather  than  reasons  against  the  exist- 
ence of  the  jurisdiction  itself.  It  seems,  indeed,  admitted  by  the 
learned  counsel  for  the  defendant,  that  if  there  be  no  foreign  adminis- 
tration, it  would  be  the  duty  of  the  court  to  grant  relief  upon  an  ad- 
ministration taken  here.  Yet  ever}-  objection  already  urged  would 
apply  with  as  much  force  in  that  as  in  the  present  case.  The  property 
would  be  to  be  distributed  according  to  the  foreign  law  of  the  de- 
ceased's domicil.  The  same  difficult}'  would  exist  as  to  ascertaining 
the  debts  and  legacies,  and  the  assets  and  distributees  entitled  to  share. 
But  it  is  said  in  the  case  now  put,  the  administration  here  would  be  the 
principal  administration,  whereas  in  the  case  at  bar  it  is  only  sm 
auxiliary  or  ancillary  administration.  I  have  no  objection  to  the  use 
of  the  terms  principal  and  auxiliary,  as  indicating  a  distinction  in  fact 
as  to  the  objects  of  the  different  administrations  ;  but  we  should  guard 
ourselves  against  the  conclusion  that  therefore  there  is  a  distinction 
in  law  as  to  the  rights  of  parties.  There  is  no  magic  in  words.  Each 
of  these  administrations  may  be  properly  considered  as  a  principal  one, 
with  reference  to  the  limits  of  its  exclusive  authority ;  and  each  might, 
under  circumstances,  justly  be  deemed  an  auxiliary  administration.  If 
the  bulk  of  the  property  and  all  tiie  heirs  and  legatees  and  creditors 
were  here,  and  the  foreign  administration  were  only  to  recover  a  few 
inconsiderable  claims,  that  would  most  correctly  be  denominated  a 
mere  auxiliary  administration  for  the  beneficial  use  of  the  parties  here, 


686  ,  HARVEY   V.   RICHARDS.  [CHAP.    XIV. 

although  the  domicil  of  the  testator  were  abroad.  The  converse  case 
would  of  course  produce  an  opposite  result.  But  I  am  yet  to  learn 
what  possible  difference  it  can  make  in  the  rights  of  parties  before  the 
court  whether  the  administration  be  a  principal  or  an  auxiliary  admin- 
istration. They  must  stand  u[)on  the  authorit\-  of  the  law  to  administer 
or  den}'  relief,  under  all  the  circumstances  of  tlieir  case,  and  not  upon 
a  mere  technical  distinction  of  very  recent  origin. 

I  have  already  intimated  my  opinion  as  to  the  true  principle  that 
ought  to  regulate  cases  of  this  nature  ;  and  I  have  endeavoured  to  an- 
swer the  most  pressing  objections  satisfactorily  at  least  to  my  mind. 
If,  therefore,  the  question  were  res  Integra^  I  should  have  no  dtfflculty 
in  deciding  that  whether  distribution  ought  or  ought  not  to  be  decreed 
should  depend  upon  the  circumstances  of  each  case  ;  that  no  universal 
rule  ought  to  be  laid  down  on  the  subject ;  or  at  least,  that  the  rule 
should  be  flexible,  and  depend  for  its  application  upon  the  equity  of  the 
particular  case  presented  to  the  court.  .  .  .  ^ 

I  have  made  some  researches  in  the  works  of  foreign  jurists  for  the 
purpose  of  ascertaining  what  is  the  practice  of  nations  governed  b}-  the 
civil  law.  Those  researches  have  not  been  verj-  satisfactory  ;  but  the}' 
leave  little  room  to  doubt  that  foreign  tribunals  sustain  suits  to  enforce 
distribution  of  assets  collected  there  under  auxiliary  administrations 
upon  the  doctrines  so  familiar  in  those  courts,  that  the  situs  ret,  as  well 
as  the  presence  of  the  party,  confers  a  competent  jurisdiction.  2  Hub. 
p.  2,  lib.  5,  tit.  1,  §  43  ;  1  Hub.  p.  1,  lib.  3,  tit.  13,  §  20,  sub  finem\ 
1  Domat,  531,  note  ;  Constit.  Frederii.  Imp.,  tit.  1,  §  10  ;  Bynk.  Quest. 
Priv.  Jur.,  lib.  1,  ch.  16. 

Upon  the  whole  my  judgment  (though  delivered  with  the  greatest 
deference  for  a  different  judgment  entertained  b}-  others)  is,  tliat  a 
court  of  equity  here  has  authority  to  decree  distribution  in  cases  like  the 
present,  according  to  the  lex  domicilii,  upon  the  application  of  the  lega- 
tees or  the  next  of  kin  or  other  competent  parties  ;  that  whether  it  will 
decree  distribution  must  depend  upon  the  circumstances  of  each  case  ; 
and  that  it  is  incumbent  on  those  who  resist  the  distribution  to  estab- 
lish in  the  given  case,  that  it  may  work  injustice  or  pul)lic  mischief. 
This  doctrine  is,  as  I  think,  sustained  by  principles  of  public  policy, 
and  is  perfectly  consistent  with  international  comity.  It  stands  also 
commended  by  its  intrinsic  equity  ;  and  although  the  authorities  are 
not  uniformly  in  its  favor,  yet  they  leave  the  court  at  liberty  to  pro- 
nounce that  judgment  which,  if  the  question  were  entirely  new,  it 
would  be  disposed  to  entertain.  Vide  Toller's  Law  of  Executors,  387  ; 
1  Woodes  Lect.  384,  385.  ^ 

1  Tilt!  Ifiarneil  imli^'e  h(;rc  examined  several  Massachusetts  and  Enfjlish  cases.  —  Ed. 

2  Ace.  Ewing  v.  Orr  Kwin^',  10  App.  Cas.  453;  Fretwell  v.  McLcmore,  52  Ala.  124; 
Gibson  V.   Dowel],  42  Ark.  164  {sanbUy,  Casilly  v.   Meyer,   4  Md.  1  ;  Succession  ot 

WBaines,  46  La.  Ann.,  14  So.  602  ;  Parsons  v.  Lyman,  20  N.  Y.  103  ;  In  re  Hughes,  95 
N.  Y.  55;  Carr  w.  Lowe,  7  Heisk.  84;  Porter  v.  Heydock,  6  Vt.  374;  Moses  v.  Hart, 
25  Grat.  795;  Estate  of  Youinans,  10  Hawaii,  207.    Contra,  Richards  v.  Dutch,  8  Mass. 


SECT.   I,]  EMERY   V.   BATCHELDER.  687 

EMERY  V.  BATCHELDER. 

Supreme  Judicial   Court  of   IMassachusetts.     1882. 

[Reported  132  Massachusetts,  452.] 

Morton,  C.  J.  This  is  a  bill  to  require  tlie  defendants,  as  executors 
of  the  will  of  Daniel  Austin,  to  reserve  and  set  apart  out  of  the  estate 
of  said  Austin  a  fund  sufficient  to  pay  the  plaintiff  an  annuity  of  four 
hundred  dollars  a  year,  given  to  her  by  the  will. 

It  appeared  at  the  hearing  that  the  testator  was  a  citizen  of  the  State 
of  Maine  ;  that  he  died  in  December,  1877,  in  Kittery  in  that  State  ; 
that  his  will  was  duly  proved  there  in  March,  1878,  and  the  defendants 
were  duly  appointed  and  qualified  as  executors  ;  that  the  defendants, 
who  are  residents  of  this  Commonwealth,  proved,  in  June,  1878,  the 
will  in  the  Probate  Court  for  the  county  of  Suffolk,  and  ancillary 
letters  testamentary  v.ere  issued  to  them  ;  that,  in  October,  1880,  the 
said  executors  filed  their  final  account  in  the  Probate  Court  for  Suffolk 
County,  showing  that  the  balance  in  their  hands  was  paid  to  said 
executors  as  executors  under  the  appointment  of  the  Probate  Court  in 
Maine,  which  account  was  allowed. 

It  also  appeared  that  the  estate  now  in  their  hands  as  such  executors 
is  not  sufficient  to  pay  all  the  legacies  in  full ;  and  the  question  which 
the  plaintiff  desires  to  raise  by  this  bill  is,  whether  the  annuity  given 
to  her  is  to  abate  in  common  with  the  other  legacies,  or  is  to  be  paid 
in  full  in  preference  to  them. 

It  is  too  well  settled,  as  a  general  rule,  to  admit  of  any  doubt,  that 
an  executor  or  trustee  appointed  by  judicial  decree  of  a  court  of  an- 
other State  is  accountable  only  in  the  courts  of  that  State  for  the  due 
execution  of  the  trust,  and  the  trust  cannot  be  enforced  in  this  Com- 
monwealth, although  the  executor  or  trustee  resides  here.  Jenkins  v. 
Lester,  131  Mass.  355,  and  cases  cited. 

The  plaintiff  contends  that  this  case  is  taken  out  of  the  general  rule 
by  the  fact  that  the  will  was  proved  here,  and  ancillary  letters  testa- 
mentary issued  to  the  defendants.  Whether,  if  the  defendants  had  now 
in  their  hands  as  such  ancillary  executors  any  balance  for  which  they 
are  liable  to  account  to  the  Probate  Court  of  Suffolk  County,  this  court 
could  and  would  entertain  jurisdiction  of  a  bill  like  this,  which  affects 
the  rights  of  all  the  other  legatees  and  the  marshalling  and  distribution 

506.  In  Pennsylvania  there  appear  to  be  two  lines  of  authority.  One  line  holds  that 
the  court  of  ancillary  administration  must  transmit  the  balance  to  the  court  of  princi- 
pal administration  for  final  distribution.  Appeal  of  Barry,  88  Pa.  131.  The  other  line 
holds  that  such  transmission  is  discretionary  with  the  court.  Welles's  Estate,  161  Pa. 
218,  28  Atl.  1116.  These  conflicting  authorities  have  not  been  reconciled.  Laughlia 
V.  Solomon,  180  Pa.  177,  180. 

The  court  should  not  retain  the  balance  until  it  is  satisfied  that  the  foreign  assets 
are  sufficient  to  pay  all  clauus  against  the  estate.  Hutton  v.  Hutton,  40  N.  J.  Eq. 
461;  Hamiltou  v.  Levy,  41  S.  C.  374,  19  S.  E.  610.  —Ed. 


688  COWDEN   V.   JACOBSON.  [CHAP.  XIV. 

of  the  whole  estate,  is  a  serious  question  which  we  are  not  required  to 
consider.  The  defendants  have  not  in  their  hands  any  funds  as  execu- 
tors appointed  in  this  State.  They  have  transmitted  the  balance  of 
the  estate  which  was  in  their  hands  as  such  executors  to  themselves  as 
executors  in  Maine,  and  this  has  been  allowed  and  approved  by  the  Pro- 
bate court  of  Suffolk  County. 

Our  statutes  provide  that,  where  ancillarj'  administration  is  taken 
out  in  this  State,  upon  the  settlement  of  the  estate,  after  the  payment 
of  the  debts  for  which  it  is  liable  in  this  State,  the  residue  of  the  per- 
sonal estate  maybe  distributed  according  to  the  will,  "  or  in  the  discre- 
tion of  the  court  it  may  be  transmitted  to  the  executor  or  administrator, 
if  there  is  any,  in  the  State  or  country  where  the  deceased  had  his 
domicil,  to  be  disposed  of  according  to  the  laws  thereof."  Gen.  Sts. 
c.  101,  §§  38,  39. 

The  allowance  of  the  final  account,  in  which  the  defendants  credited 
themselves  with  the  residue  in  their  hands  as  paid  to  the  executors  in 
Maine,  was  in  effect  an  order  of  the  court  that  such  residue  should  be 
transmitted  to  the  defendants  as  principal  executors  appointed  in 
Maine.  If  the  executors  in  the  two  States  had  been  different  persons, 
it  is  clear  that  the  executors  here  could  not  be  held  accountable  in  our 
courts  after  the}'  had,  under  an  order  of  the  Probate  Court,  transmitted 
the  balance  in  their  hands  to  the  executors  in  Maine.  They  then  would 
have  fully  administered  the  estate  here,  and  there  would  be  nothing 
upon  which  a  decree  of  the  court  here  could  act. 

The  principle  is  the  same  where  the  executors  in  the  two  States  are 
the  same  persons.  They  act  in  each  State  in  a  different  capacity,  and 
are  in  law  regarded  as  different  persons.  When  the  defendants  acting 
as  executors  in  Massachusetts  transmitted  the  estate  in  their  hands,  as 
such  executors,  to  themselves,  acting  as  executors  in  Maine,  they  had 
performed  all  their  duties  in  Massachusetts,  and  were  no  longer  ac- 
countable as  executors  here.  They  thereby  placed  the  whole  of  the 
estate  of  the  testator  within  the  jurisdiction  and  control  of  the  courts 
of  Maine,  and  are  accountable  for  it  there.  We  are  of  opinion  that  this 
jurisdiction  is  exclusive,  and  that  this  court  cannot  entertain  a  bill  in 
equity,  for  the  purpose  of  construing  the  will  and  marshalling  and  dis- 
tributing the  estate. 

Bill  dismissed. 


COWDEN  V.  JACOBSOX. 

Supreme  Judicial  Court  of  Massachusetts.     1896. 

[Reported  1G5  Massachusetts,  240.] 

Morton,  J.     This  is  an  appeal  In-  an  administrator  from  a  decree  of 
the  Probate  Court  in  Worcester  County  disallowing  certain  items  in  his 


SECT.  I.]  COWDEN   V.   JACOBSON. 


689 


account.  At  the  hearing  before  the  Chief  Justice,  the  appellee  desired 
to  contest  other  items  in  the  account  besides  those  involved  in  the  ap- 
peal of  the  administrator,  but  the  court  ruled  that  it  was  not  open  to 
her  to  contest  other  independent  items.  The  appellee  does  not  ques- 
tion now  the  correctness  of  the  ruling,  and  we  think  that  it  clearl}- 
was  right.  Boynton  v.  Dyer,  18  Pick.  1  ;  Harris  v.  Harris,  153  Mass. 
439. 

The  principal  matter  in  dispute  relates  to  the  disallowance  of  the 
payment  b\-  the  administrator  of  a  note  held  against  the  intestate  at 
her  decease  by  Walter  B.  Chase  of  Sutton  in  this  State,  an  heir  at  law. 
The  intestate  lived  in  Connecticut,  where  she  possessed  real  and  per- 
sonal estate.  She  also  possessed  real  estate  in  Sutton.  The  appel- 
lant, who  lives  in  Worcester,  was  appointed  administrator  in  both 
States.  The  next  of  kin  were  Walter  B.  Chase  aforesaid,  a  brother, 
and  one  Hattie  H.  Jacobson  of  Portland,  Maine,  a  half  sister.  B}'  the 
laws  of  Connecticut  kindred  of  the  wliole  blood  take  to  the  exclusion 
of  the  half  blood.  There  were  debts  of  the  intestate  in  this  State, 
consisting  of  the  note  to  Chase,  and  of  unpaid  taxes  on  the  estate  in 
Sutton.  During  the  settlement  of  the  estate  in  Connecticut  the  note 
was  presented  by  Chase  to  the  judge  of  probate,  as  it  is  provided  by 
the  Connecticut  statutes  may  be  done  with  claims  when  the  adminis- 
trator lives  out  of  the  State  (Gen.  Sts.  of  Conn,  of  1888,  §  582),  and 
he,  on  learning  that  there  was  estate  of  the  deceased  in  this  Common- 
wealth, declined  to  allow  it  on  the  same  grounds  as  debts  due  Con- 
necticut creditors,  and  the  note  was  not  allowed,  and  does  not  seem  to 
have  been  presented  again  to  that  court.  Subsequently  the  adminis- 
trator in  Connecticut,  having  settled  his  account  with  the  estate  in  the 
Probate  Court  there,  and  having  in  his  hands  for  distribution,  as  ap- 
peared from  said  account,  §1,425.13  in  personal  estate,  was  ordered 
by  the  Probate  Court  under  the  statute  for  such  cases  made  and  pro- 
vided (Gen.  Sts.  of  Conn,  of  1888,  §  628)  to  pay  the  same  to  said  Chase 
as  the  heir-at-law,  and  did  so.  The  estate  in  Sutton  was  sold  by  the 
administrator  pursuant  to  hcense  from  the  Probate  Court,  and  the  note 
was  paid  out  of  the  proceeds.  The  appellee,  who  was  a  minor,  had 
notice  of  the  petition  to  sell  the  real  estate  in  Sutton,  and  also  of  the 
action  of  the  court  in  Connecticut  in  regard  to  distribution,  but  made 
no  objection  to  the  proceedings  until  the  administrator  presented  his 
account  for  allowance  to  the  Probate  Court  of  Worcester  County. 

The  appellee  contends  that  the  note  should  have  been  paid  by  the 
administrator  out  of  the  personal  estate  in  Connecticut,  and  she  relies 
on  Livermore  r.  Haven,  23  Pick.  116,  and  also  on  Fa}'  v.  Haven, 
3  Met.  109,  where  another  question  growing  out  of  the  same  contro- 
versy was  considered.  But  in  Livermore  v.  Haven,  as  was  observed 
in  substance  in  Prescott  v.  Durfee,  131  Mass.  477,  the  question  was 
whether  the  court  in  its  discretion  should  grant  a  license  under  the 
circumstances  to  sell  real  estate  in  this  Commonwealth  for  the  payment 
of  debts.     In  this  case  the  license  has  been  granted  by  a  court  of  com- 

44 


690  COWDEN   V.    JACOBSOX.  [CHAP.  XIV. 

pelent  jurisdiction,  after  due  notice,  and  the  sale  has  been  made,  and 
neither  those  proceedings  nor  the  validity  of  the  appointment  of  the 
administrator  can  now  be  attacked  collaterally  by  the  appellee.  Pierce 
V.  Prescott,  128  Mass.  110.  It  does  not  appear  that  the  payment  by 
the  administrator  was  not  made  in  good  faith,  or  that  there  was  any 
collusion  between  him  and  Chase  in  regard  to  the  settlement  of  the 
estate  in  Connecticut,  or  the  sale  here. 

If  there  were  collusion  or  bad  faith  the  case  might  stand  differently. 
Stevens  v.  Gaylord,  11  Mass.  256,  266.  The  distribution  of  the  estate 
in  Connecticut  was  made  under  an  order  of  the  Probate  Court,  which 
has  not  been  impeached  in  any  respect.  The  administrator  was  bound 
to  comply  with  it,  and  for  aught  that  appears  would  have  been  liable 
to  a  suit  on  his  bond  if  he  had  failed  to  do  so.  Though  administrator 
of  both  estates,  he  could  not  have  been  compelled  to  apply  tlie  personal 
property  in  Connecticut  to  the  payment  of  debts  here,  nor  have  been  held 
accountable  for  it  here.  Boston  /•.  Boylston,  2  Mass.  384  ;  Hooker  v. 
Olmstead,  6  Pick.  481  ;  Fay  c.  Haven,  3  Met.  109,  114;  Wheelock  v. 
Pierce,  6  Cush.  288  ;  Norton  r.  Palmer,  7  Cush.  523.  If  it  was  neces- 
sary, in  order  to  justify  the  payment  of  the  note  out  of  the  proceeds  of 
the  real  estate  sold  here,  for  the  administrator  to  show  that  tlie  creditor 
had  used  some  diligence  to  collect  the  note  out  of  the  personal  estate 
in  Connecticut,  and  that  he  had  met  with  some  legal  impediment  there, 
we  think  it  sufficiently  appears  that  he  had  done  so.  He  presented  his 
claim  to  the  proper  tribunal,  which  declined  to  allow  it  except  subject 
to  the  priorities  of  Connecticut  creditors.  It  certainly  would  be  going 
very  far  to  hold  that,  under  such  circumstances,  he  was  bound  to  wait 
upon  and  follow  the  settlement  of  the  Connecticut  estate,  instead  of 
resorting  to  the  real  estate  here. 

In  Prescott  v.  Durfee,  iibi  supra,  it  was  held  that  a  Massachusetts 
creditor  of  a  New  York  intestate,  who  died  possessed  of  real  estate 
here  but  no  personal  estate,  might  procure  the  appointment  of  an  ad- 
ministrator in  this  State,  and  attach  the  real  estate  to  recover  the  pa}'- 
ment  of  his  demand.  It  appeared  that  an  administrator  had  been 
appointed  in  New  York,  and  that  there  was  personal  estate  there  more 
tlian  sufficient  to  pay  all  the  debts,  and  there  was  nothing  to  show  that 
the  creditor  had  made  any  effort  to  collect  his  debt  out  of  the  personal 
estate  in  New  York.  But  neither  fact  appears  to  have  been  regarded 
as  material.^ 

If  there  had  been  different  administrators  in  Connecticut  and  Mas- 
sachusetts, and  tlie  same  course  had  been  pursued  by  them  in  regard  to 
the  respective  estates  tliat  has  been  followed  by  the  present  adminis- 
trator, we  presume  that  it  hardly  would  l)e  contended  tliat  tlie  payment 
of  Chase's  note  by  the  administrator  in  this  State  should  be  disallowed. 
We  do  not  see  that  it  makes  any  difference  on  principle  that  the  same 
person   was    administrator   in   both    jurisdictions.      As    already   ob- 

1  Ace.  Rosenthal  v.  Renick,  44  111.  202  ;  and  see  Hobson  v.  Payne,  45  111.  158  ;  In 
re  Gable'i  Estate,  79  la.  178,  44  X.  W.  352.  —  Ed. 


SECT.  I.]  COWDEN    V.   JACOBSON.  691 

served,  he  is  not  accountable  here  by  reason  of  that  fact  for  the  estate 
in  Connecticut.  See  State  v.  Osboru,  71  Mo.  86.  If  he  has  not  ad- 
ministered the  estate  in  Connecticut  according  to  law,  doubtless  he  is 
liable  there  upon  his  bond.  This  court  cannot  revise  his  actions  as 
administrator  of  that  estate.  Jennison  v.  Hapgood,  10  Pick.  77  101. 
If  he  has  administered  it  according  to  law,  still  less  can  his  conduct  be 
made  the  foundation  of  liability  by  reason  of  the  payment  of  Chase's 
note  out  of  the  proceeds  of  the  real  estate  in  Sutton.  The  appellee's  con- 
tention would  seem  to  go  the  length  of  requiring  him  to  maintain  that, 
although  the  administrator  administrated  the  estate  in  Connecticut  in 
good  faith,  and  distributed  it  according  to  the  direction  of  the  court 
having  jurisdiction  of  it,  the  payment  of  Chase's  note  should  be  disal- 
lowed because  the  admiiiistrator  did  not  see  that  it  was  paid  out  of  the 
personal  estate  in  Connecticut.  If  that  be  so,  then,  without  adverting 
to  other  considerations,  the  converse  of  the  proposition  must  be  equally 
true ;  namek,  that  the  creditor  was  bound  to  obtain  payment  out  of 
the  personal  estate  in  Connecticut,  and  had  no  light  to  resort  to  the 
real  estate  here,  which  would  be  at  variance  with  Prescott  v.  Durfee, 
ubi  supra.  We  do  not  think  that  either  proposition  can  be  maintained 
•when  applied  to  the  circumstances  of  this  case.  It  is  not  contended 
that  it  was  the  duty  of  the  administrator  in  Connecticut  to  see  that 
creditors  presented  their  claims  and  were  paid  out  of  the  personal 
estate  there,  and -we  assume  that  he  committed  no  breach  of  his  bond 
b}'  failing  to  do  so,  or  to  appeal  from  the  ruling  of  the  Probate  Court 
disallowing  the  note.  In  the  absence  of  personalty  in  this  State,  the 
real  estate  constituted  a  fund  for  the  payment  of  debts  here.  The 
administrator  was  not  bound  to  see  that  either  estate  was  exonerated 
at  the  expense  of  the  other.  He  was  required  to  administer  and  dis- 
pose of  each  estate  in  good  faith  according  to  the  law  of  the  State 
where  it  was  situated.  In  respect  to  this  item  there  is  nothing  to  show 
that  he  has  not  done  so.  We  think  that  the  payment  to  Chase  should 
have  been  allowed. 

The  two  remaining  items  relate  to  the  burial  of  the  deceased  whose 
remains  were  brought  into  this  Commonwealth  and  consist  of  the  under- 
taker's services  and  tlie  cost  of  digging  the  grave.  They  were  incurred 
before  but  not  paid  till  after  the  settlement  of  the  account  in  Connecti- 
cut, and  were  not  included  in  it.  No  doubt,  if  there  had  been  but  one 
administrator,  and  he  in  Connecticut,  these  items  would  have  been 
allowed  in  his  account  if  dulv  presented  to  and  paid  bj^  him.  Jennison 
V.  Hapgood,  10  Pick.  77,  86,  87.  But  though  the  administration  here 
was  ancillary  to  that  in  Connecticut,  we  think  that  these  expenses 
must  be  regarded  as  incurred  b^'  the  ancillary  administrator  in  the  due 
course  of  his  administration  of  the  estate  in  this  Commonwealth,  and 
that  as  such  they  should  be  paid  out  of  the  property  available  here  for 
the  payment  of  demands  due  to  creditors  residing  in  that  State. 

A  majorit}'  of  the  court  think  that  the  decree  of  tlie  Probate  Court 
should  be  reversed  in  respect  to  the  items  appealed  from,  and  affa-med 
in  other  particulars,  and  it  is  So  ordered. 


692 


IN   KE   KNIGHT.  [CHAP.  XIV. 


SECTION   II. 
wardships. 

In  re  knight. 

Court  op  Appeal.     1898. 

[Reported  [1898]  1  Chancery,  257.] 

In  August,  1894,  Agnes  Maria  Knight,  widow,  a  resident  in  the 
Island  orjersej',  was  found  by  an  order  of  the  Royal  Court  of  Jersey 
a  person  of  unsound  mind,  and  a  gentleman  resident  in  Jersey  was, 
under  the  laws  of  the  island,  appointed  curator  of  her  property  and 
person.  The  personal  estate  of  tlie  lunatic  comprised  a  sum  of  Con- 
sols and  also  shares  in  an  English  bank  and  an  English  Uraited 
company  all  standing  in  her  name.  The  curator  accordingly  presented 
a  petition  in  Lunacy  under  section  134  of  the  Lunacy  Act,  1890,  ask- 
ing for  an  order  for  transfer  of  the  stock  and  shares  into  his  name. 
Upon  the  petition  coming  before  the  judge  in  Lunacy,  it  was  supported 
by  an  affidavit  by  the  curator  showing  that  the  property  required  to 
be  transferred  was  to  be  used  for  the  maintenance  or  sole  benefit  of 
the  lunatic;  but  the  judge  made  a  note  that  the  affidavit  "did  not 
show  that  the  money  was  needed  for  maintenance  or  for  any  other 
purpose  of  the  lunatic."  The  curator,  however,  contended  that,  having 
been  appointed  in  Jersey  and  having  undertaken  to  get  in  the  property 
of  the  lunatic,  he  was  entitled  as  of  right  to  have  the  stock  and  shares 
transferred  to  him,  and  that  the  court  had  no  jurisdiction  to  deal 
with  the  lunatic's  property  beyond  ordering  a  transfer  of  it  to  him,  the 
curator,  who  was  responsible  to  the  Jersey  court  for  the  due  applica- 
tion thereof.  The  curator  then  filed  a  further  affidavit  stating  that 
according  to  the  law  of  Jersey  the  whole  personal  estate  of  a  person 
to  whom  a  curator  had  been  appointed  by  the  royal  court  of  Jersey 
vested  absolutely  in  such  curator,  who  was  able  to  deal  with  the  same 
absolutely  as  directed  by  his  electors,  being  persons  who  in  the  present 
case  had,  under  the  direction  of  the  Jersey  court,  made  an  inquiry 
into  the  mental  condition  of  the  lady.  Upon  the  petition  coming 
before  him  again  on  that  affidavit  the  judge  ordered  the  petition  to  be 
adjourned  into  court  for  argument  on  the  question  of  jurisdiction.^ 

LiNDLKY,  M.  R.  We  all  take  the  same  view  of  this  case.  It  was 
urged  before  the  judge  in  Lunacy,  sitting  in  chambers,  that  he  had  no 
jurisdiction  in  the  matter,  and  the  case  was  adjourned  into  court  to 
have  that  point  decided.  I  am  clearly  of  opinion  that  Mr.  Wood  has 
put  his  case  too  high,  and  that  it  is  not  our  duty  to  make  an  order 
parting  with  the  possession  of  the  lunatic's  property  without  exercising 
some  discretion  in  the  matter.     The  section  of  the  Lunacy  Act,  1890, 

1  Aif'uuieuts  of  counsel  are  omitted.  —  Ed. 


SECT.  II.]  IN   RE   KNIGHT.  693 

dealing  with  this  property,  that  is,  with  stock  that  cannot  be  trans- 
ferred without  an  order,  is  section  134,  which  runs  tlms  :  [His  Lord- 
ship read  the  section,  and  continued:  —  ] 

Now,  Mr.  "Wood  has  brought  himself  within  this  section  so  far  as 
it  gives  him  the  right  to  make  this  application.  In  In  re  Brown  this 
court  put  an  extensive  rather  than  a  restrictive  interpretation  on  the 
words  "vested  in  a  person  appointed  for  the  management"  of  the 
property  of  the  lunatic;  and  having  regard  to  that  decision,  we  are 
quite  right  in  saying  that  the  personal  property-  of  this  lady  has 
become  "vested"  in  the  applicant  according  to  the  law  of  Jersey 
within  section  134  and  the  decision  in  In  re  Brown,  [1895]  2  Ch. 
666. 

Then  comes  the  question,  What  ought  we  to  do?  "We  should  be 
running  counter  to  what  has  been  the  established  practice  for  the  last 
one  hundred  years  or  more,  if  we  were  to  hold  that  the  court  has  no 
discretion  in  such  a  case  as  this.  Mr.  Wood  has  referred  us  to  Julius 
v.  Bishop  of  Oxford,  5  App.  Cas.  214  ;  but  that  case  does  not  appear 
to  carrj'  him  through  at  all.  If  we  have  property  of  a  lunatic  here, 
it  is,  to  my  mind,  clear  almost  to  demonstration  that  we  have  a  discre- 
tion under  section  134  as  to  granting  or  refusing  such  an  application  as 
this.  Section  90  says,  in  sub-section  1,  that  "The  judge  in  Lunacy 
ma}'  upon  application  by  order  direct  an  inquisition  whether  a  person  is 
of  unsound  mind  and  incapable  of  managing  himself  and  his  affairs." 
Then  sub-section  2  says:  "Where  the  alleged  lunatic  is  within  the 
jurisdiction,  he  shall  have  notice  of  the  application  and  shall  be 
entitled  to  demand  an  inquiry  before  a  jur}-."  Then  section  96  savs  : 
"  Where  the  alleged  lunatic  is  not  within  the  jurisdiction  it  shall  not 
be  necessary  to  give  him  notice  of  the  application  for  inquisition,  and 
the  inquisition  shall  be  before  a  jur}'."  The  section,  it  will  be  ob- 
served, says  "  shall."  Now  just  consider  the  effect  of  those  sections. 
The  law  is  not  new :  it  is  as  old  as  the  time  of  Lord  Hardwlcke,  that 
in  the  case  of  a  person  resident  abroad  and  having  property  in  this 
country,  the  court  has  jurisdiction  to  direct  an  inquisition  as  to  such 
person  and  to  appoint  a  committee  of  that  propert}'.  So  that,  if 
anybody  were  to  apply  here  for  an  inquisition  as  to  the  sanitv  of  this 
lad}",  the  court  would  have  jurisdiction  to  appoint  a  committee  of  the 
property  of  this  lady  within  the  jurisdiction,  and  to  administer  her 
estate.  How,  then,  can  it  be  incumbent  upon  this  court,  without 
exercising  any  discretion  at  all,  to  hand  over  this  property  to  a  foreign 
curator?  If  Mr.  Wood's  contention  is  right,  the  court  would  lose  the 
jurisdiction  which  it  clearly  has  over  a  foreign  lunatic's  property  in 
this  country.  The  real  truth  is  that  the  jurisdiction  of  the  court  over 
lunatics  who  have  property  within  the  jurisdiction  cannot  be  oirsted  by 
such  ambiguous  words  as  we  find  in  section  134.  The  point  was  to 
some  extent  considered  in  In  re  Brown,  supra,  where  it  was  said  that 
the  court  must  be  cautious  not  to  hand  over  the  property  unless  a  proper 
case  was  made  out.     There  the  court  was  satisfied  that  the  property 


694        DIDISHEIM   V.    LONDON   AND    WESTMINSTER    BANK.      [CHAP.  XIV. 

was,  in  fact,  required  for  the  maintenance  and  support  of  the  lunatic, 
who  was  resident  in  Victoria,  and,  tlierefore,  made  an  order  under 
section  134  for  a  transfer  of  funds  in  this  country'  belonging  to  the 
lunatic  to  the  Master  in  Lunacy  in  Victoria. 

For  the  reasons  I  have  given,  and  having  regard  to  the  terms  of 
section  134  and  comparing  the  terms  of  section  134  with  sections  90 
and  96,  and  also  having  regard  to  the  long-establislied  practice  as  to 
the  jurisdiction  of  this  court,  I  am  clearly  of  opinion  that  Mr.  Wood 
has  put  his  case  too  high,  and  that  the  court  has  jurisdiction  to 
exercise  its  discretion  as  to  making  an  order  such  as  is  now  asked 
for.  This  case  was  adjourned  into  court  to  have  the  question  of 
jurisdiction  decided.  The  application  must  stand  over  in  order  that 
the  applicant  may  l)e  at  liberty  to  file  further  evidence  showing  that 
the  fund  is  required  for  the  maintenance  of  the  lunatic  according  to 
the  law  of  Jersey,  and  the  grounds  upon  which  the  transfer  of  the 
stock  should  be  made. 

RiGBY,  L.  J.  I  am  of  the  same  opinion.  We  should  not  onlv  be 
overruling,  if  not  extinguishing,  long-established  authorities,  but  de- 
ciding something  quite  novel,  if  we  were  to  hold  that  under  section 
134  the  court  has  no  discretion.  No  doubt,  prima  facie  the  proceed- 
ings in  Lunac}'  abroad  should  be  treated  with  all  respect  here,  and  in 
this  case  it  may  very  well  be  that,  acting  upon  our  discretion,  we  may 
ultimate]}'  make  the  order  asked  for  under  section  134  ;  that,  however, 
must  depend  upon  the  nature  of  the  further  evidence  tliat  ma}' 
be  filed  by  the  applicant.  But,  in  my  opinion,  the  point,  wliich  is  the 
onl}-  one  now  before  us,  namely,  whether  we  have  a  discretion,  must 
be  decided  against  the  applicant. 

Vaughan  Williams,  L.  J.     I  am  of  the  same  opinion. 

LiNDLEY,  M.  K.  We  give  the  applicant  leave  to  bring  in  a  further 
affidavit.  It  is  his  duty  to  get  in  as  much  of  the  lunatic's  property  as 
he  can. 


DIDISHEIM  V.  LONDON  AND  WESTMINSTER  BANK. 

CouuT  OF  Appeal.     1900. 

[Reported  [1900]  2  Chancery,  15.] 

LiNDLEY,  M.  R.  ^  Tiiis  action  is  by  M.  Didisbeim  and  b}*  Madame 
Goldschraidt ;  bv  liini  as  her  ne.Kt  friend.  The  object  is  to  obtain  a 
large  sum  of  casli  and  also  share  and  stock  certificates  and  scrip  for 
bearer  bonds  and  shares  of  great  value  from  the  defendants.  The 
defendants  are  quite  ready  to  pay  and  deliver  these  up  provided  the}' 

1  Part  of  the  opinion  only  is  given.  —Ed. 


SECT.  II.]       DIDISHEIM   V.   LONDON   AND    WESTMINSTER   BANK.  695 

can  safeh'  do  so.  The  bulk  of  the  propertN'  sought  to  be  recovered 
formed  part  of  the  assets  of  M.  Goldschmidt,  a  deceased  gentleman, 
domiciled  and  resident  in  Belgium.  He  died  some  time  ago,  and  his 
widow,  the  plaintiff,  Madame  Goldschmidt,  obtained  letters  of  admin- 
istration with  his  will  annexed.  By  her  directions  most  of  the  property' 
in  the  hands  of  the  defendants  has  been  placed  in  their  books  in  her 
name.  She  is  domiciled  in  Belgium  and  is  resident  abroad.  She  has 
become  insane  and  is  in  a  foreign  lunatic  asylum.  M.  Didisheim  has 
been  duly  appointed  her  "  administrateur  provisoire,"  with  power  to 
collect  and  get  in  all  her  personal  estate.  He  is  also  now  the  legal  per- 
sonal representative  of  M.  Goldschmidt,  having  obtained  letters  of 
administration  to  his  personal  assets  left  unadministered  by  Madame 
Goldschmidt.  He  and  she  together,  therefore,  are  clearly  entitled 
to  all  the  property  sought  to  be  obtained  from  the  defendants.  They 
do  not  deny  M.  Didisheim's  right  as  administrator  to  such  assets 
of  the  deceased  as  have  not  become  Madame  Goldschraidt's  propertj- ; 
but  thej'  say  that,  owing  to  what  she  did  when  sane,  all  his  assets 
in  their  hands  became  hers,  and  they  are  now  accountable  to  her 
alone  for  them.  As  to  the  cash,  certificates  and  scrip  which  are  the 
propert}'  of  Madame  Goldschmidt,  the  defendants  say  they  cannot 
safelv  hand  them  over  to  M.  Didisheim,  as  the  ownership  of  them 
is  still  vested  in  her  and  has  not  been  legally  vested  in  M.  Didisheim, 
North,  J.  has  held  that,  unless  an  order  is  made  in  lunac\'  requiring 
or  authorizing  the  defendants  to  deliver  the  property  of  Madame 
Goldschmidt  to  M.  Didisheim,  they  cannot  safely  deliver  such  property 
to  him. 

The  relations  and  friends  of  Madame  Goldschmidt  are  particularly 
desirous  of  avoiding  an\-  formal  adjudication  of  "lunacy,  and  this 
appeal  has  been  brought  on  purpose  to  avoid  the  necessity-  of  such 
an  adjudication.  The  title  of  the  plaintiffs,  it  will  be  observed,  is 
a  purely  legal  title  ;  there  is  no  trust  in  the  case.  Under  the  old 
practice  one  action  could  not  have  been  maintained  to  enforce  a  claim 
b}'  M.  Didisheim  as  administrator  and  also  a  claim  by  Madame 
Goldschmidt  to  recover  her  own  property.  Two  separate  actions  of 
detinue  or  trover  would  have  been  necessary.  Our  modern  practice, 
however,  is  less  rigid,  and  the  defendants  have  raised  no  objection 
to  the  two  claims  being  joined  in  one  action.  The  court,  therefore, 
can  properl}-  entertain  the  action  and  decide  the  real  question  raised 
b}'  the  defendants,  which  is  whether,  in  an  action  brought  by  M. 
Didisheim  in  his  own  name  and  in  the  name  of  Madame  Goldschmidt 
and  as  her  next  friend  the  High  Court  ought  to  make  an  order  for 
the  delivery  to  him  of  her  property.  The  question  may  be  put  in 
another  wa}',  whether  he  is  entitled  in  an  action  so  framed  to  demand 
deliver}'  of  her  property  to  him.     We  are  of  opinion  that  he  is. 

In  Scott  V.  Bently,  1  K.  (Ss  J.  281,  a  person  resident  in  Scotland 
was  entitled  to  an  annuity  charged  on  land  in  England  and  secured  by 
a  covenant  entered  into  with  himself     The  annuitant  became  lunatic, 


696        DIDISHEIM    V.   LONDON   AND   WESTMINSTEK    BANK.      [CHAP.  XIV. 

and  a  curator  bonis  was  appointed  according  to  Scottish  law.  Whether 
he  was  judicially  declared  a  lunatic  does  not  distinctly'  appear;  nor 
does  it  appear  that  the  ownership  of  his  personal  property  was  by 
Scottish  law  divested  from  him  and  vested  in  his  curator.C  We  rather 
infer  that  tlie  curator  merely  had  power  to  collect  it  and  get  it  in.) 
The  annuity  being  in  arrear,  the  curator  brouglit  a  suit  in  Chancer}'  in 
his  own  name  against  the  executrix  and  devisee  in  trust  of  the  grantor 
of  the  annuity  for  payment  of  the  arrears  and  for  paj'ment  of  the 
annuit}'  in  future.  It  is  to  be  observed  that  the  demand  of  the  plain- 
tiff was  a  purely  legal  demand.  He  sought  to  enforce  the  legal  riglit 
of  the  annuitant  under  the  covenant  and  grant.  But  the  arrears  seem 
to  have  been. set  apart  as  a  trust  fund,  and  this  was  held  enough  to 
give  the  Court  of  Chancer}'  jurisdiction  to  entertain  the  suit.  Wood, 
V.-C,  made  an  order  as  prayed  by  the  bill.  This  decision  has  been 
much  questioned  ;  but  unless  it  be  that  the  suit  ought  in  strictness  to 
have  been  in  the  name  of  the  lunatic  by  his  curator  as  next  friend,  we 
see  no  ground  for  doubting  the  correctness  of  the  decision. 

Scott  V.  Bentley,  siqyra,  has  been  questioned  mainly  because  it  pro- 
ceeded to  some  extent  on  the  supposed  authorit}'  of  a  decision  in  the 
House  of  Lords  on  an  appeal  from  Scotland,  in  In  re  Morrison's 
Lunacy,  Islov.  Diet.  4595,  1  Cr.  St.  &  P.  454.  This  case  appears  to 
have  been  to  some  extent  misunderstood.  The  Vice-Chancellor  refers 
to  it  as  an  unreported  case  cited  in  Johnstone  v.  Beattie,  (1843)  10 
CI.  &  F.  42,  and  in  Sill  v.  Worswick,  (1791)  1  H.  Bl.  677-8,  2  R.  R. 
816.  In  Johnstone  /'.  Beattie,  10  CI.  &  F.  97,  Lord  Brougham  refers 
to  Morrison's  Case,  supi'a,  as  cited  in  the  note  to  Sill  o.  Worswick, 
8upra^  and  as  an  authorit}'  for  the  proposition  that  the  legally  ap- 
pointed curator  in  one  country'  was  held  entitled  to  act  in  another. 
Tliis,  it  is  plain,  was  also  Wood,  V.-C.'s,  view  of  Morrison's  Case,  as 
is  apparent  from  his  remark  (1  K.  &,  J.  285)  that  in  Morrison's  Case 
the  curator  sued  alone.  But  the  reports  of  that  case  to  which  we  have 
referred,  supra,  show  that  the  decision  of  the  House  of  Lords  in 
Morrison's  Case  did  not  go  that  length,  and  Lord  Campbell  was  not 
satisfied  that  it  did  (10  CI.  &  F.  133).  We  understand  the  decision  as 
showing  that  a  committee  appointed  in  England  of  a  Scotsman  resi- 
dent in  England  could  not  sue  in  Scotland  simply  in  his  own  name 
and  as  committee  for  the  recovery  of  the  lunatic's  personal  estate ; 
but  that  such  committee  could  sue  there  in  the  name  of  the  lunatic 
for  the  recovery  of  the  lunatic's  personal  estate.  Morrison's  Case, 
therefore,  did  not  go  so  far  as  Wood,  V.-C,  thought,  but  it  goes  a 
long  way  to  sliow  that  the  proceedings  in  this  action  are  properl}' 
framed  ;|for  this  action  is  brought,  not  only  by  M.  Didisheim  in  his 
double  capacity  of  administrator  of  Madame  Goldschmidt  and  curator 
of  Madame  Goldschmidt,  but  also  by  her  in  her  own  name  suing  by 
M.  Didisheim  us  her  next  friend.  \  In  Scott  r.  Bentley,  si/pra,  Wood, 
V.-C,  did  not  by  any  means  base  his  judgment  only  on  the  supposed 
decision  in  In  re  Morrison's  Lunac}',  sujira,  and  after  making  every 


SECT.  II.]       DIDISHEIM   V.    LONDON   AND   WESTMINSTER   BANK.  697 

allowance  for  his  misapprehension  in  that  case,  Scott  v.  Bentley  was^ 
in  our  opinion,  well  decided,  although  we  cannot  help  thinking  that, 
if  Wood,  V. -C,  had  known  the  form  of  the  order  made  in  Morrison's 
Case,  he  would  have  directed  the  bill  to  be  amended  bj'  making  it  in 
form  a  bill  by  the  lunatic  b}'  his  curator  and  next  friend. 

In  Alivon  v.  Furnival,  1  C.  M.  &  R.  277,  286,  40  R.  R.  561,  Parke, 
B.  expressed  a  clear  opinion  to  the  effect  that  a  foreign  curator  could 
sue  here  in  his  own  name  for  goods  and  chattels  of  a  person  of  unsound 
mind. 

Scott  V.  Bentle}',  supra,  is  consistent  with  and  is  really  supported 
b^'^  several  other  cases  cited  by  Mr.  Haldane,  and  of  which  Re  Tarratt, 
51  L.  T.  310,  III  re  De  Linden,  [1897]  1  Ch.  453,  and  Thiery  v. 
Chalmers,  Guthrie  &  Co.,  [1900]  1  Ch.  80,  are  the  most  recent  and 
important.  In  In  re  De  Linden,  an  application  was  made  on  behalf  of 
a  Bavarian  lunatic  lady  for  pa3-ment  out  to  two  foreign  gentlemen  of 
some  mone}'  in  court  belonging  to  her.  The  application  was  by  her  in 
her  own  name  by  her  next  friend,  who  was  a  Bavarian  judge  and  one 
of  two  persons  appointed  by  a  Bavarian  court  to  take  charge  of  her 
and  her  propert}-.  The  order  was  made  as  asked — that  is,  for  pa\'- 
ment,  not  to  her,  but  to  the  two  persons  appointed  as  above  men- 
tioned. The  lady  had  been  judicially  declared  lunatic,  but  there  was 
no  judicial  vesting  of  her  propert}'  in  the  curators. 

Thier}'  v.  Chalmers,  Guthrie  «&;  Co.,  supra,  was  a  similar  case.  The 
lunatic  there  was  a  French  subject  declared  lunatic  in  France,  and 
whose  property  was  placed  under  the  care  of  a  duly  appointed  tuteur. 
An  action  was  brought  in  this  country  by  the  lunatic  by  a  next  friend 
and  b}'  the  tuteur  as  a  co-plaintiff  to  recover  money  and  securities  in 
the  hands  of  the  lunatic's  bankers.  An  order  was  made  for  the 
delivery  of  them  to  the  tuteur.  Kekewich,  J.,  thought  that  the  tuteur 
might  have  sued  alone  in  his  own  name.  He  regarded  the  decision  in 
2)1  re  Brown,  [1895]  2  Ch.  666,  as  an  authority  for  so  holding,  inas- 
much as  both  in  In  re  Brown  and  in  Thiery  v.  Chalmers,  Guthrie  & 
Co.  the  lunatic  had  been  formally  so  declared  by  the  foreign  court. 
But  In  re  Brown  was  not  an  action ;  it  was  an  application  to  the  Court 
in  Lunacy  under  section  134  of  the  Lunacy  Act,  and  we  doubt  whether 
the  action  in  Thiery  v.  Chalmers,  Guthrie  &  Co.  would  have  been 
rightly  framed  if  brought  by  the  tuteur  as  sole  plaintiff. 

An  alteration  in  the  status  of  a  lunatic  appears  to  be  necessary 
in  order  to  enable  the  Court  in  Lunacy  to  exercise  the  jurisdiction 
conferred  upon  it  by  section  134  of  the  Lunacy  Act,  1890  ;  but  it  by  no 
means  follows  that  persons,  whose  status  has  not  been  altered  by  their 
being  judicially  declared  lunatic  cannot  sue  by  themselves  by  a  next 
friend  for  the  recovery  of  their  own  property.  In  re  Knight,  [1898] 
1  Tnrr2o77~Eurned  on  the  discretion  which  the  court  had  under  section 
134  of  the  Lunacy  Act,  and  throws  no  real  light  on  this  case. 

The  only  difficulty  in  the  way  of  the  plaintiffs  is  occasioned  by  In  re 
Barlow's  Will,  36  Ch.  D.  287.      In  that  case  a  colonial  statute  vested 


698      DIDISHEIM    V.    LONDON    AND    WESTMINSTER    BANK.        [CHAP.  XIV. 

in  a  Master  in  Lunacy  the  care  and  custody  of  the  propert}'  of  lunatic 
patients  — that  is,  of  persons  confined  in  hinatic  asyUims  but  not  judi- 
cially declared  lunatic.  A  colonial  lady,  contined  in  a  lunatic  asylum 
in  the  colony,  was  entitled  to  some  funds  in  the  hands  of  trustees  in 
this  countr}-,  and  the  colonial  Master  in  Lunacy  claimed  these  funds. 
The  trustees  paid  them  into  court  under  the  Trustee  Relief  Act.  The 
colonial  Master  and  the  lady  by  her  next  friend  presented  a  petition 
for  the  transfer  of  the  funds  in  court  to  the  colonial  Master  in  Lunacy. 
The  court  made  an  order  for  the  payment  out  of  capital  of  some  past 
maintenance  and  for  the  payment  of  the  income  to  the  master  whilst 
the  lady  continued  in  an  asylum.  But  the  court  would  not  order  the 
rest  of  the  corpus  to  be  paid  over  to  the  master.  It  is  to  be  observed 
that  the  general  statutory  authority  given  by  the  Colonial  Act  to  the 
master  as  an  officer  of  the  colonial  court  was  not  supplemented  by  any 
order  giving  the  master  any  express  authorit}-,  as  the  lunatic's  attorney-, 
to  get  in  any  property'  not  locally  within  the  jurisdiction  of  the  court ; 
and,  as  we  understand  Cotton,  L.  J.'s  judgment,  he  was  much  influenced 
by  the  omission  of  an}-  such  order.  If  the  master's  authority  derived 
from  the  colonial  statute  was  unsatisfactory,  it  is  obvious  that  such 
authorit}-  was  not  improved  by  his  assumption  of  the  right  to  use  the 
lunatic's  name.  In  that  view  of  the  case,  the  fact  that  the  lunatic 
petitioned  in  her  own  name  by  her  next  friend  did  not  remove  the 
difficulty.  Having  decided  that  the  master  was  not  entitled  as  a 
matter  of  right  to  demand  payment  to  himself,  it  became  necessary 
for  the  court,  acting  as  trustees,  to  consider  what  it  was  the  duty  of 
trustees  to  do  in  such  a  case  as  that  before  them  ;  and  they  considered 
that  in  such  a  case  the  trustees  ought  not  to  part  with  the  trust  fund 
without  seeing  to  its  application,  and  ought  not  to  part  with  the  fund 
to  the  master  further  than  the}'  were  satisfied  that  the  interests  of  the 
lunatic  rendered  it  necessarv  to  do  so.  This  was  the  view  taken  in  lyi 
re  Garnier,  L.  R.  13  Eq.  532,  where,  however,  the  lunatic  was  a 
domiciled  Englishman,  and  we  see  no  reason  to  dissent  from  it  where 
the  authorit}-  of  the  foreign  curator  to  get  in  the  trust  property  is 
regarded  by  the  court  as  unsatisfactor}-.  But  where  it  is  not,  the 
considerations  which  weighed  with  the  court  in  In  re  Barlow's  Will, 
supra,  do  not  arise.  A  person  absolutely  entitled  to  trust  money  is 
entitled  to  have  it  paid  to  him  or  to  any  one  duly  appointed  by  him 
to  receive  it,  and  the  trustees  or  the  court  acting  for  them  have  no 
discretion  to  refuse  payment.  The  same  principle  is,  in  our  opinion, 
applicable  to  the  case  in  which  trust  money  belongs  to  a  lunatic  and  a 
person  is  duly  appointed  by  a  competent  authority  to  get  in  sucli  money 
f(jr  the  lunatic.  If  the  title  of  the  lunatic  is  clear,  and  the  authority  to 
act  for  him  is  equally  clear,  we  fail  to  see  what  discretion  the  court, 
acting  for  the  trustees,  has  in  the  matter.  The  trustees  may  properly 
say  that  they  cannot  safely  act  without  the  sanction  of  the  court,  but 
we  fail  to  see  what  other  discretion  there  is.  Where  the  lunacy  juris- 
diction is  being  exercised,  as  it  was  in  In  re  Stark,  2  Mac.  &  G.  174, 


SECT,  II.]       DIDISHEIM    V.    LONDON    AND    WESTMINSTER    BANK  699 

other  considerations  at  once  arise.  If,  as  in  In  re  Garnier,  supra., 
the  kinatic  were  an  Englishman  temporarily  abroad,  and  confined  as  a 
kinatic  abroad,  we  should  feel  considerable  difHculty  in  holding  that 
the  courts  of  this  country  were  bound  to  recognize  the  title  of  a 
foreign  curator  to  sue  in  this  country.  But  here  we  are  dealing  with 
an  alien  domiciled  abroad,  and  over  whom  the  courts  of  this  country 
have  no  jurisdiction  except  such  as  is  conferred  by  the  fact  that  she 
has  property  here.  All  that  the  court  here  has  to  do  is  to  see  that  the 
person  claiming  it  is  entitled  to  have  it. 

In  this  case  the  order  of  the  Belgian   court  of  November  25,  1899, 
removes  all  doubt  as  to  M.  Didisheim's  authority  to  take  these  proceed- 
ings and  to  obtain  and  give  a  good  discharge  for  the  propertv  which  he 
seeks  to  recover.     On  general  principles  of  private  international  law, 
the  courts  of  this  country  are  bound  to  recognize  the  authority  con- 
ferred on  him  by  the  Belgian  courts,  unless  lunac}-  proceedings  in  this 
country  prevent  them  from  doing  so.    What  ought  to  be  done  in  lunacy 
has  not  to  be  considered,  and  we  say  nothing  on  this  subject.     In  our 
opinion,  the  appeal  should  be  allowed,  and  an  order  be  made  as  asked 
by  the  claim.     But  the  plaintiffs  must  pay  all  the  costs  ;  for  tlie  bank 
was  perfectly  justified  in  not  complying  with  M.  Didisheim's  demands 
without  an  order  of  the  High  Court —  that  is,  without  proving  his  title 
in  such  a  way  as  to  make  it  unreasonable  for  the   bank  to  refuse  to 
recognize  it.     Under  the  old  practice  an  action  of  detinue  or  trover 
might  have  failed  ;  for  under  the  general  issue  the  defendants  could 
have  given  in  evidence  facts  excusing  delivery  to  a  person  rightfully 
entitled,  but  whose  title  was  not  such  as  the  defendants  could  safely 
recognize.     See  per  Blackbui-n,  J.,  in  Hollins  ?;.  Fowler,  (1875)  L.  R. 
7  H.  L.  766,  and  the  cases  there   cited.     But  in  practice,  if  in  such 
a  case  the  plaintiff  proved  his  title  to  the   satisfaction  of  the  court 
and  paid  the  defendant's  costs,  the  plaintiff  always  obtained  delivery. 
Under  the  modern  practice,  if  this  case  had  been  tried  by  a  jury  there 
would  be  no  difficulty,  we  apprehend,  in  ordering  delivery  to  JI.  Didis- 
heim,  and,  in  a  proper  case  like  this,  giving  the  defendants  the  costs  of 
the  action  —  that  is,  there  would  be  good  cause  for  making  the  plain- 
tiffs pay  the  costs,  although  they  succeeded  in  estabhshing  their  title. 
See  Gleddon  r.  Trebble,  9  C.  B.  (n.  s.)  367.      If  the  action  were  tried 
without  a  jur}-,  whether  in   the  Chancery  Division,  as  this   was,  or  in 
the  Queen's  Bench  Division,  the  costs  would  be  in  the  discretion  of 
the  judge,  and  there  would  be  no  difficulty  in  ordering  delivery  to  the 
plaintiffs  and  ordering  them  to  pay  the  costs.     However  tried,  any 
other   result  would   be  very  unjust. 

Mr.  Terrell  suggested  that  the  order  of  the  court  would  not  protect 
the  bank  if  the  lunatic  were  to  recover  and  were  to  sue  the  bank  for  her 
money  and  property  after  the  bank  had  paid  and  delivered  it  to  M, 
Didisheim,  We  do  not  entertain  any  misgiving  on  this  point.  The 
High  Court  clearly  had  jurisdiction  to  entertain  the  action  and  to 
decide  the  questions  raised  in  it,  and   to  make   the  order  which  this 


700  MAY   V.   WANNEMACHER.  [CHAP.  XIV 

court  now  declares  it  ought  to  have  made ;  and  this  court  clearly  has 
jurisdiction  to  entertain  this  appeal.  This  being  clear,  and  the  Belgian 
court  having  had  jurisdiction  to  make  the  order  which  it  made,  the 
bank  would  unquestionably  have  a  perfectly  good  defence  to  any  action 
which  the  lunatic  could  bring  against  it,  either  by  another  next  friend 
or  by  another  official  curator,  or  by  herself  if  she  should  recover-^ 


SECTION   III. 

Insolvent  Estates. 
MAY   V.   WANNEMACHER. 
Supreme  Judicial  Court  of  Massachusetts.     1872 
{Reported  111  Massachusetts,  202.] 

Trustee  process  against  Charles  Wannemacher  and  Joseph  Max- 
field,  surviving  partners  of  the  firm  of  N.  Sturtevant  &  Company,  on 
promissory  notes  indorsed  by  the  firm.  John  Borrowscale  was  sum- 
moned as  trustee  of  the  defendants.     Writ  dated  June  6,  1865. 

The  case,  as  it  appeared  from  the  answer  of  the  trustee  and  an 
agreed  statement  of  facts,  upon  which  it  was  submitted  to  the  judgment 
of  the  Superior  Court,  was  as  follows  :  — 

The  firm  of  N.  Sturtevant  &  Company  was  composed  of  the  defend- 
ants, both  of  whom  were  domiciled  in  Philadelphia  in  the  Common- 
wealth of  Pennsylvania,  and  were  citizens  of  Pennsylvania,  and  of 
Noah  Sturtevant,  who  was  domiciled  in  Boston  and  was  a  citizen  of 
Massachusetts.      The   firm   did   business    both   in    Philadelphia   and 

Boston. 

The  following  indenture  was  executed  on  the  day  of  its  date.  [The 
substance  of  the  indenture  was  a  conveyance  by  N.  Sturtevant  &  Com- 
pany, and  by  each  member  of  the  firm,  of  all  their  property  to  Joseph 
A.  Clay  of  Philadelphia,  for  the  benefit  of  their  creditors.] 

It  was  agreed  by  the  parties  "  that  general  assignments  by  debtors 
for  the  ben'efit  of  their  creditors  were  recognized  by  the  law  of  Pennsyl- 
vania at  the  time  the  assignment  in  this  case  was  made,  by  an  act  of 
the  Assembly  of  Pennsylvania  of  June  14,  1836  ;  that  by  subsequent 
acts  all  preferences  in  such  assignments,  except  for  wages  of  labor  to  a 
limited  amount,  are  avoided,  and  the  assignments  enure  to  the  benefit 
of  all  the  creditors  equally,  with  the  above  exception,  so  far  as  the 
laws  of  Pennsylvania  have  force  ;  that  the  assignment  of  October  25, 
1861,  to  Clay,  was  general  and  without  preferences,  so  far  as  the  laws 

1  Followed  in  case  of  a  lunatic  residing'  abroad,  though  domiciled  iu  Euglaud.  New 
York  Security  4.  Trust  Co.  v.  Keyscr,  [1901]  1  Ch.  666.  —  Ed. 


SECT.  III.]  MAY   V.   WANNEMACHER.  701 

of  Pennsj'lvania  have  force,  and  conformable  to  the  laws  of  Pennsyl- 
vania;  that  Cla}',  the  assignee,  filed  his  first  account  November  17, 
1863  ;  that  it  was  referred  to  John  N.  Campbell,  a  master,  for  audit 
and  distribution  ;  that  claims  of  creditors  were  proved  prior  to  April 
14,  1864,  to  the  amount  of  $412,027.18  ;  that  Campbell  filed  his  report 
on  that  day,  and  declared  a  dividend  of  oxV  per  cent,  which  has  been 
paid  as  demanded  ;  that  on  December  30,  1864,  Campbell  filed  a  sup- 
plementary report,  admitting  a  claim  of  §2,645.37,  to  a  dividend,  and 
some  small  claims  were  proved  afterwards  ;  that  Clay  subsequently 
filed  his  second  account,  exhibiting  a  balance  of  $11,613.77,  which, 
with  some  little  accrued  interest,  will  suffice  for  a  further  dividend  of 
between  two  and  three  per  cent ;  that  there  is  an  apparently  hopeless 
claim  against  a  bankrupt  estate  still  outstanding,  but  nothing  else  re- 
coverable by  the  assignee,  unless  the  claim  in  the  present  case  can  be 
enforced  ;  that  by  the  laws  of  Pennsylvania  creditors  only  recognize 
the  assignment  by  proving  their  claims  and  accepting  dividends,  as 
they  have  done  in  tliis  case  to  the  extent  above  mentioned,  and  they 
have  no  remedy  against  the  assigned  property  except  this  ;  and  that  no 
judgment  or  execution  binds  or  can  be  levied  on  the  estate  after  the 
assignment,  and  the  assignment  is  valid  against  them  in  every  way,  so 
far  as  the  laws  of  Pennsylvania  have  force." 

Borrowscale,  who  was  a  citizen  of  Massachusetts,  was  employed  by 
Clay,  assignee,  under  the  laws  of  Pennsylvania,  of  the  firm  of  N. 
Sturtevant  &  Company,  to  collect  certain  amounts  due  that  firm  ;  and 
he  did  collect  certain  sums,  of  which  he  paid  over  part  to  Clay,  and 
held  the  balance  in  his  hands  at  the  time  when  he  was  summoned  as 
trustee. 

The  plaintiff  was  a  citizen  of  Massachusetts,  domiciled  there  at  the 
time  of  the  assignments  to  Clay  and  of  the  bringing  of  this  suit,  and 
also  at  the  time  of  the  making  of  the  notes  sued  on,  which  were  made 
and  delivered  in  Massachusetts  ;  and  the  plaintiff  never  proved  his 
claim  under  the  assignments  to  Clay,  or  in  any  manner  recognized  or 
assented  to  the  said  assignments,  or  to  the  action  of  Clay  under  the 
same,  or  to  the  doings  of  the  other  creditors  in  regard  to  said  assign- 
ments.    Noah  Sturtevant  died  before  this  action  was  brought. 

The  Superior  Court  discharged  the  trustee,  and  the  plaintiff  appealed. 

Wells,  J.  The  St.  of  1836,  c.  238,  having  been  repealed,  this  case 
is  not  affected  by  any  considerations  arising  from  that  statute,  or  from 
the  general  policy  of  the  insolvent  laws  of  Massachusetts.  National 
Mechanics'  &  Traders'  Bank  v.  Eagle  Sugar  Refinery,  109  Mass.  38. 

Independently  of  tliose  laws,  it  has  always  been  held  that  voluntary 
assignments  by  a  debtor,  in  trust  for  the  payment  of  debts,  and  with- 
out other  adequate  consideration,  are  invalid  as  against  attachment, 
except  so  far  as  assented  to  by  the  creditors  for  whose  benefit  they 
were  made.  If  assented  to  by  creditors,  such  assignments  are  good  at 
common  law,  and  will  protect  the  property  or  fund  from  attachment  to 
the  extent  of  the  amount  due  to  creditors  thus  assenting ;  unless,  by 


702  MAY    V.   WANNEMACHER.  [CHAP.  XIV. 

the  conditions  of  tlie  assignment,  it  is  made  to  take  effect  only  upon 
the  assent  of  all,  or  a  prescribed  number  of  creditors. 

The  assent  of  creditors  will  not  be  presumed  on  the  ground  that  it  is 
apparently  for  their  interest;  but  must  be  shown  by  some  form  of 
adoption  or  affirmative  acquiescence.  Russell  v.  Woodward,  10  Pick. 
408.  413. 

In  cases  of  assignment  by  a  tripartite  instrument,  it  is  generally 
necessary  that  creditors  should  execute  the  instrument  in  order  to  give 
it  full  effect,  because  such  is  the  intent  with  which  it  is  made.  But 
when  this  is  not  required  by  the  form  of  the  instrument  of  assignment, 
it  is  only  necessary  that  creditors  should  give  such  assent  to  its  pro- 
visions as  will  recognize  and  affirm  the  acceptance  and  possession  of 
the  property  by  the  assignee,  as  made  and  held  for  their  benefit  and  in 
their  behalf,  in  accordance  with  the  terms  of  the  assignment.  Russell 
V.  Woodward,  10  Pick.  408;  Everett  v.  Walcott,  15  Pick.  94. 

If  creditors  present  their  claims  to  the  trustees  for  allowance  for  the 
purpose  of  a  distribution,  in  accordance  with  the  terms  of  the  assign- 
ment, they  thereby  assent  to  the  trust;  and  the  trustee  thereafter 
holding  the  property  in  their  behalf  holds  it  upon  a  legal  consideration, 
and  his  title  is  perfected.  The  effect  is  the  same  if  they  present  their 
claims  to  commissioners  or  other  persons  appointed  for  that  purpose, 
in  accordance  with  the  terms  of  the  assignment.  And  it  can  make  no 
difference,  in  this  particular,  if  those  persons  are  appointed  under  pro- 
visions of  local  public  law,  with  reference  to  which  the  instrument  of 
assignment  was  made. 

The  foregoing  propositions  meet  and  cover  the  present  case.  The 
assignment  was  made  with  reference  to  the  laws  of  Pennsylvania.  It 
is  agreed  that,  by  those  laws,  such  an  assignment  is  recognized  as 
valid ;  and  the  proof  and  allowance  of  claims,  and  the  distribution,  are 
conducted  as  judicial  proceedings.  Creditors,  to  an  amount  largely 
exceeding  the  total  assets,  have  presented  and  proved  their  claims  and 
accepted  dividends  upon  them,  thereby  signifying  their  adoption  of  the 
assignment  for  their  benefit. 

The  question  is  made  how  far  the  courts  of  this  Commonwealth  are 
bound  to  recognize  assignments  of  this  kind,  made  in  a  foreign  juris- 
diction, when  set  up  against  our  own  citizens  claiming  to  hold,  by 
attachment,  property  of  the  insolvent  debtor  found  within  this  jurisdic- 
tion. 

Such  assignments  made  by  commissioners  of  bankruptcy,  or  by 
judicial  or  legislative  authority  merely,  without  the  act  and  assent  of 
the  debtor,  are  not  held  as  binding  upon  the  courts  of  another  State. 
Taylor  r.  Columbian  Ins.  Co.,  14  Allen,  S.oS. 

An  assignment  made  by  the  debtor  himself  in  another  State,  which, 
if  made  here,  would  be  set  aside  for  want  of  consideration  or  delivery, 
or  as  fraudulent,  or  contravening  the  policy  of  the  law  of  this  Com- 
monwealth, will  not  be  sustained  here  against  an  attachment,  although 
valid    in   the    State  or  country  where   made.     Zipcey  v.   Thompson, 


SECT.  III."!  MAY    V.   WANNEMACHEK.  703 

1   Gray,    243;  Fall  River  Iron  Works  Co.   v.   Croade,  15  Pick.   11; 
Ingraham  v.  Gej-er,  13  Mass.  146  ;  Osborn  v.  Adams,  18  Pick.  245. 

In  each  case  above  mentioned,  to  sustain  the  assignment  would  be  to 
give  force  and  effect  here  to  the  foreign  law,  which  has  none  suo  vigore. 
That  is  a  matter  of  comity,  and  not  of  right.  But  in  each  case  the 
assigiiment  is  always  sustained  so  far  as  it  affects  property  which  was 
at  the  time  within  the  jurisdiction  where  it  was  made  :  Benedict  v. 
Parmenter,  13  Gray,  88  ;  Wales  v.  Alden,  22  Pick.  245  ;  and  also  as 
against  all  citizens  of  that  jurisdiction,  even  when  seeking  a  remedy 
here  against  property  found  here.  Rhode  Island  Central  Bank  r.  Dan- 
forth,  14  Gray,  123  ;  Martin  v.  Potter,  11  Gray,  37  ;  Richardson  v. 
Forepaugh,  7  Gray,  546  ;  Whipple  v.  Thayer,  16  Pick.  25;  Daniels  v. 
Willard,  lb.  36. 

This  assignment  is  made  by  the  debtors  themselves.  No  fraud  is 
shown  or  suggested.  It  in  no  respect  contravenes  the  policy  of  law  as 
established  in  this  Commonwealth.  It  is  assented  to  by  creditors  suffi- 
ciently to  give  it  a  valid  consideration  and  full  legal  effect,  if  it  had 
been  made  here.  The  effect  of  that  assent  does  not  depend  at  all  upon 
the  judicial  proceedings  in  Pennsylvania.  Giving  no  force  whatever  to 
the  judicial  authority  of  those  proceedings,  or  to  the  local  law,  we  find, 
in  the  acts  of  the  parties  sufficient  to  constitute  a  legal  and  valid  as- 
signment, which  should  be  held  to  be  good  wherever  made,  and  effectual 
to  pass  the  rights  of  the  debtors  even  to  property  not  subject  to  the 
local  laws  of  Pennsylvania.  JNIcans  v.  Hapgood,  19  Pick.  105  ;  Newman 
V.  Bagley,  16  Pick.  570.     The  judgment  therefore  must  be 

Trustee  discharged. 


704  IN  THE  MATTER  OF  THE  ACCOUNTING   OF  WAITE.       [CHAP.  XIV, 

In   the   Matter   of   the   Accounting   of   WAITE. 

Court  of  Appeals,  New  York.     1885. 

[Reported  99  New  York,  433  ] 

Earl,  J.  On  the  loth  day  of  October,  1881,  Ilaynes  &  Sanger,  a 
firm  doing  business  in  the  city  of  New  York,  having  become  insolvent, 
made  a  general  assignment,  for  the  benefit  of  their  creditors,  to  Charles 
Waite,  who  was  a  member  of  the  firm  of  Pendle  «&  Waite,  and  in  their 
assignment  preferred  that  firm  as  creditors  for  a  large  amount.  Pendle 
&  Waite  did  business  in  New  Y'ork  and  London,  Waite  being  a  citizen 
of  this  country  residing  in  the  city  of  New  Y^ork  and  having  cliarge  of 
the  business  of  his  firm  there,  and  Pendle  being  a  citizen  of  England 
and  having  charge  of  the  firm  business  there.  That  firm  became  in- 
solvent and  suspended  business  in  P^ngland  in  Fel)ruary,  1882,  and 
Waite  then  went  to  England,  and  there  he  and  Pendle  filed  a  petition 
in  the  London  Court  of  Bankruptcy,  in  which  they  recited  their  in- 
ability to  pay  their  debts  in  full,  and  that  they  were  "desirous  of 
instituting  proceedings  for  the  liquidation  of  their  affairs  by  arrange- 
ment or  composition  with  their  creditors,  and  hereb}-  submit  to  the 
jurisdiction  of  this  court  in  the  matter  of  such  proceeding."  Waite 
signed  the  petition  in  person,  and  through  his  counsel  at  once  secured 
the  appointment  of  Schofield  as  receiver,  in  bankruptcy,  of  the  firm 
property. 

Liquidation  by  arrangement  or  composition  is  a  proceeding  under 
the  English  bankruptcy  act  which  provides  that  the  filing  of  such  a 
petition  is  an  act  of  bankruptcy  ;  that  a  compromise  proposition  may 
be  made  by  a  debtor,  and  that  if  such  proposition  shall  be  accepted  by 
the  creditors  at  a  general  meeting,  and  then  confirmed  at  a  second 
general  meeting,  and  registered  by  the  court,  it  becomes  binding  and 
may  be  carried  out  under  the  supervision  of  the  court ;  that  if  it  ap- 
pears to  the  court  on  satisfactory  evidence  that  a  composition  cannot 
in  consequence  of  legal  difficulties,  or  for  any  other  sufficient  cause, 
proceed  without  injustice  or  undue  delay  to  the  creditors,  or  the  debtor, 
the  court  may  adjudge  the  debtor  a  Ijunkrupt  and  proceedings  may  be 
had  accordingly,  and  that  the  title  of  the  trustee  in  bankruptcy,  when 
appointed,  relates  back  to  the  time  of  the  commission  of  the  act  of 
bankruptcy. 

For  reasons  which  it  is  unnecessary  now  to  consider  or  relate,  the 
composition  failed,  and  then  upon  the  application  of  creditors,  which 
was  oi)posed  by  Waite,  Pendle  &  Waite  were  adjudged  bankrupts,  and 
Schofield  was  appointed  trustee  of  the  firm  property.  By  the  English 
law,  the  due  appointment  of  a  trustee  in  bankruptcy,  under  the  English 
bankruptcy  act,  transfers  to  the  trustee  all  the  personal  property  of 
the  bankrupt  wherever  situated,  whether  in  Great  Britain  or  elsewhere. 

Notwithstanding  his  bankruptcy,  Waite  continued  to  act  as  assignee 


SECT.  Ill}       IN  THE  MATTER  OF  THE  ACCOUNTING  OF  WAITE. 


ro5 


of  Haynes  &  Sanger  and  converted  the  assets  of  that  firm  into  money, 
and  under  the  preference  given  to  his  firm  paid  himself  for  the  firm  of 
Pendle  &  Waite  the  sum  of  814,333.70.  He  paid  no  portion  of  that 
sum  to  Pendle  or  to  the  creditors  of  his  firm,  the  American  creditors 
of  such  firm  having  been  fully  paid  from  other  assets  of  the  firm. 

After  all  this,  Waite  filed  his  petition  in  the  Court  of  Common  Pleas 
of  the  city  of  New  York  for  a  settlement  of  his  accounts  as  assignee, 
and  citations  were  issued,  served,  and  published  for  that  purpose, 
and  a  referee  was  appointed  to  take  and  state  his  accounts.  In  his 
accounts  he  entered  and  claimed  a  credit  for  the  sum  paid  to  himself  as 
above  stated.  Schofield,  through  his  attorney,  appeared  upon  the 
accounting  and  as  trustee  objected  to  the  credit  and  claimed  that  sum 
should  be  paid  to  him.  The  referee  ruled  that  the  law  of  this  State 
does  not  recognize  the  validity  of  foreign  bankruptcy  proceedings  to 
transfer  title  to  property  of  the  bankrupt  situated  here,  and  for  that 
reason  held  that  the  payment  by  Waite,  as  assignee,  to  himself  as  a 
member  of  the  firm  of  Pendle  &  Waite,  was  valid,  and  that  he  was 
entitled  to  the  credit  claimed.  The  same  view  of  the  law  was  taken 
at  the  special  and  general  terms  of  the  common  pleas,  and  then 
Schofield  appealed  to  this  court. 

We  have  stated  the  facts  as  found  by  the  referee,  and  as  the  respond- 
ent did  not  and  could  not  except  to  the  findings,  and  is  therefore  in  no 
condition  to  complain  of  them,  we  must  assume  that  they  were  based 
upon  suflScient  evidence. 

The  transfer  of  the  property  of  Pendle  &  Waite  to  Schofield  as 
trustee  was  in  invitum,  solely  by  operation  of  the  English  bankrupt 
law.  While  the  proceeding  first  instituted  by  the  bankrupts  to  ar- 
range a  composition  with  their  creditors  was  voluntary,  the  final  pro- 
ceeding through  which  the  adjudication  in  bankruptcy  was  had,  and 
the  trustee  appointed  was  adversary  and  against  their  will,  having  no 
basis  of  voluntary  consent  to  rest  on.  Willitts  v.  Waite,  25  N.  Y. 
577. 

If  the  transfer  effected  by  the  bankruptcy  proceedings  is  to  have  the 
same  effect  here  as  in  England,  then  the  title  to  the  money  due  to  the 
bankrupts  from  Haynes  &  Sanger  was  vested  in  the  trustee.  Schofield 
was  appointed  receiver  of  the  property  of  the  bankrupts  in  March,  1882, 
and  then  the  title  passed  out  of  them.  That  title  continued  in  him  as 
receiver  until  he  was  appointed  trustee.  After  he  was  appointed  re- 
ceiver and  before  or  after  he  was  appointed  trustee  (which  does  not 
appear),  Waite  as  assignee  paid  himself  as  a  member  of  the  firm  of 
Pendle  &  Waite  the  sum  of  money  in  controversy.  He  had  notice  of 
the  bankruptcy  proceedings  and  knew  that  the  title  to  the  money  due 
from  Haynes  &  Sanger  and  from  himself  as  their  assignee  had  passed 
out  of  the  bankrupts  to  Schofield,  and  hence  he  had  no  right  to  make 
payment  to  them.  Schofield  became  substituted  in  their  place,  and 
Waite  was  bound  to  make  payment  to  him,  and  cannot,  therefore,  have 
credit  for  a  payment  wrongfully  made.     And   Schofield,  standing  in 

45 


706  IN  THE  MATTER  OF  THE  ACCOUNTING  OF  WAITE.      [CHAP.  XIV. 

the  place  of  the  original  creditors  of  Hayues  &  Sanger,  had  the  right 
to  appear  upon  the  accounting  and  object  to  the  erroneous  payment 
made  in  disregard  of  his  rights.  But  the  alleged  payment  was  merely 
formal,  not  real.  Waite,  the  assignee,  still  has  the  money  and  is 
accountable  for  it  to  the  proper  party.  It  is  not  perceived  how  it  can 
be  claimed  that  Schofield  was  bound  at  any  time  before  the  account- 
ing to  make  any  demand  upon  the  assignee.  He  was  a  creditor 
holding  the  claim  originally  due  to  Pendle  &  "Waite,  and  as  such  he 
could  appear  upon  the  accounting,  with  all  the  rights  of  an}'  other 
creditor,  to  protect  his  interests,  and  he  could  not  be  prejudiced  by 
a  payment  alleged  to  have  been  made  b}'  the  assignee  to  himself. 
All  this  is  upon  the  assumption  that  the  transfer  to  Schofield  as 
trustee  is  to  have  the  same  force  and  effect  here  as  against  the  bank- 
rupts as  in  England ;  and  whether  it  must  have,  is  the  important  and 
interesting  question  to  be  determined  upon  this  appeal. 

It  matters  not  that  Waite  was  a  citizen  of  this  country,  domiciled 
here.  He  went  to  England  and  invoked  and  submitted  to  the  jurisdic- 
tion of  the  bankruptc}'  court  there  and  is  bound  by  its  adjudication  to 
the  same  extent  as  if  he  had  been  domiciled  there.  The  adjudication 
estopped  him  just  as  every  party  is  estopped  by  the  adjudication  of 
a  court  which  has  jurisdiction  of  his  person  and  of  the  subject-matter. 

We  have  not  a  case  here  where  there  is  a  conflict  between  the 
foreign  trustee  and  domestic  creditors.  So  fat  as  appears  no  in- 
justice whatever  will  be  done  to  any  of  our  own  citizens,  or  to  any 
one  else,  by  allowing  the  transfer  to  have  full  effect  here.  Indeed 
justice  seems  to  require  that  this  money  should  be  paid  to  the  foreign 
trustee  for  distribution  among  the  foreign  creditors  of  the  bankrupts. 

The  effect  to  be  given  in  any  counUy  to  statutory  m  invitiim  trans- 
fers of  propert}'  through  bankruptcy'  proceedings  in  a  foreign  country 
has  been  a  subject  of  much  discussion  among  publicists  and  judges, 
and  unanimity  of  opinion  has  not  and  probablj'  never  will  be  reached. 
We  shall  not  enter  much  into  the  discussion  of  the  subject  and  thus 
travel  over  ground  so  much  marked  by  the  footsteps  of  learned  jurists. 
Our  main  endeavor  will  be  to  ascertain  what,  bj'  the  decisions  of  the 
courts  of  tliis  State,  has  become  tlie  law  here.^ 

In  Willitts  V.  Waite  (25  N.  Y.  577),  it  was  lield  that  statutory  re- 
ceivers appointed  in  Ohio  could  not  enforce  their  title  to  the  propert}' 
of  the  insolvent  in  this  State  against  creditors  subsequently  attaching 
it  here,  under  our  laws.  In  that  case,  while  Sutherland,  J.,  was  of 
opinion  that  from  comity  the  courts  of  this  State  should  recognize  and 
allow  some  effect  to  a  foreign  involuntary  bankrupt  proceeding,  yet  he 
erroneousl}'  said  that  he  understood  that  a  title  under  such  proceedings 

^  The  learned  judge  here  examined  the  following  cases:  Bird  r.  Caritat,  2  Johns. 
342;  Raymond  v.  Johnson,  11  Johns.  488;  Holmes  v.  Remsen,  4  Johns.  Ch.  460  ; 
Holmes  v.  Remsen,  20  Johns.  229  ;  Plcstoro  v.  Aliraham,  1  Paige,  236,  3  Wend.  538  ; 
Johnson  v.  Hunt,  23  Wend,  87 ;  Hoyt  v.  Thompson,  5  N.  Y.  320,  19  N.  Y.  207.  — 
Ed. 


SECT.  III.]      IN  THE  MATTER  OF  THE  ACCOUNTING  OF  WAITE.  707 

"  would  not  be  recognized  by  the  courts  of  this  State,  even  when  the 
question  arises  entirely  between  the  bankrupt  and  his  assignees  and 
creditors  all  residing  in  the  country  under  whose  laws  the  assignment 
was  made."  Allen,  J.,  writing  in  the  same  case,  said:  '■^  A  quasi 
effect  may  be  given  to  the  law  (of  a  foreign  State)  as  a  matter  of 
comit}-  and  interstate  or  international  courtes}',  when  the  rights  of 
creditors  or  bona  fide  purchasers,  or  the  interests  of  the  State  do  not 
interfere,  by  allowing  the  foreign  statutory  or  legal  transferee  to  sue 
for  it  in  the  courts  of  the  State  in  which  the  propert}'  is  ; "  and  that 
'*  the  State  will  do  justice  to  its  own  citizens  so  far  as  it  can  be  done 
by  administering  upon  propertj-  within  its  jurisdiction,  and  will  yield 
to  comit}'  in  giving  effect  to  foreign  statutory  assignments  only  so  far 
as  may  be  done  without  impairing  the  remedies  or  lessening  the  securi- 
ties which  our  laws  have  provided  for  our  own  citizens."  The  rule,  as 
stated  by  Judges  Piatt,  Ruggles,  Allen,  and  other  eminent  jurists, 
whose  opinions  we  have  quoted,  were  also  fully  recognized  in  the  fol- 
lowing cases  :  Peterson  v.  Chemical  Bk.,  32  N.  Y.  21 ;  Kelly  lu  Crapo, 
45  N.  Y.  86  ;  Osgood  v.  Maguire,  61  N.  Y.  524  ;  Hibernia  Bk.  v.  La- 
combe,  84  N.  Y.  367  ;  Matter  of  Bristol,  16  Abb.  Pr.  184  ;  Runk  v.  St. 
John,  29  Barb.  585;  Barclay  v.  Quicksilver  Mining  Co.,  6  Lans.  25; 
Hooper  v.  Tuckerman,  3  Sandf.  311  ;  Olyphant  v.  Atwood,  4  Bosw. 
459  ;  Hunt  v.  Jackson,  5  Blatchf.  349. 

From  all  these  cases  the  following  rules  are  to  be  deemed  thoroughly 
recognized  and  established  in  this  State :  (1)  The  statutes  of  foreign 
States  can  in  no  case  have  any  force  or  effect  in  this  State  ex  propria 
vigore,  and  hence  the  statutorj-  title  of  foreign  assignees  in  bankruptcy 
can  have  no  recognition  here  solely  by  virtue  of  the  foreign  statute. 
(2)  But  the  comit}'  of  nations  which  Judge  Denio  in  Peterson  v. 
Chemical  Bank  (supra)  said  is  a  part  of  the  common  law,  allows  a  cer- 
tain effect  here  to  titles  derived  under,  and  powers  created  by  the  laws 
of  other  countries,  and  from  such  comity  the  titles  of  foreign  statutory 
assignees  are  recognized  and  enforced  here,  when  the}-  can  be,  without 
injustice  to  our  own  citizens,  and  without  prejudice  to  the  rights  of 
creditors  pursuing  their  remedies  here  under  our  statutes  ;  provided 
also  that  such  titles  are  not  in  conflict  with  the  laws  or  the  public  policy 
of  our  State.  (3)  Such  foreign  assignees  can  appear  and,  subject  to 
the  conditions  above  mentioned,  maintain  suits  in  our  courts  against 
debtors  of  the  bankrupt  whom  they  represent,  and  against  others  who 
have  interfered  with,  or  withhold  the  property  of  the  bankrupt. 

If  it  be  admitted,  as  it  must  be  under  the  authorities  cited,  that 
Schofield  can,  as  assignee  of  Pendle  &  Waite,  have  a  standing  in  our 
courts,  and  that  his  title  will  be  so  far  recognized  here  that  he  can 
sue  the  debtors  of  that  firm  to  recover  the  amount  owing  to  the  firm, 
whv  may  he  not  sue  the  bankrupts?  If  the  assignee  could  sue  Haynes 
&  Sanger  to  recover  what  they  owed  the  bankrupts,  why  can  he  not  be 
permitted  to  sue  the  bankrupts  for  money  or  property'  placed  in  their 
hands  to  pay  the  debt?     If  he  could  su-^  Haynes  &  Sanger,  why  could 


708  IN  THE  MATTER  OF  THE  ACCOUNTING  OF  WAITE.       [CHAP.  XIV. 

not  he  sue  their  assignee,  although  a  member  of  the  bankrupt  firm,  to 
recover  the  mone}-  placed  in  his  hands  to  pa}'  their  debt?  No  prin- 
ciple of  justice,  no  public  polic}'  requires  the  courts  of  this  State  to 
ignore  the  title  of  this  assignee  at  the  instance  of  one  of  the  bank- 
rupts. No  injustice  will  be  done  to  Waite  if  this  money  be  taken  to 
pay  his  creditors,  and  public  polic}'  does  not  require  that  the  courts 
of  this  State  should  protect  him  in  his  efforts  either  to  cheat  his 
creditors  or  his  partner.  If  it  be  conceded,  as  it  must  be,  that  the  title 
of  a  foreign  statutory  assignee  is  good  in  this  State  for  any  purpose 
against  anybod}',  it  seems  to  us  that  it  ought  to  be  held  good  against 
the  bankrupt  against  whom  an  adjudication  in  bankruptcy  has  been 
pronounced  which  is  binding  upon  him. 

Before  such  an  adjudication  can  be  held  to  be  efficacious  in  a  foreign 
country  to  transfer  title  to  propert}-,  the  bankrupt  court  must  have  had 
jurisdiction  of  the  bankrupt  either  because  made  in  the  country  of  his 
domicil  or  because  he,  although  domiciled  elsewhere,  submitted  to  the 
jurisdiction  or  in  some  other  way  came  under  the  jurisdiction  of  the 
bankrupt  court.  Here  Pendle  &  Waite  did  most  of  their  business  in 
England.  Most  of  their  assets  and  of  their  creditors  were  there,  and 
while  Pendle  alone  was  domiciled  there,  Waite  went  there  and  sub- 
mitted to  the  jurisdiction  of  the  bankrupt  court  and  exposed  himself  to 
the  operation  of  English  law.  He  is  therefore  bound  by  the  adjudica- 
tion of  the  court  as  he  would  have  been  if  domiciled  there,  and  the 
judgment  had  been  in  a  common  law  court  upon  any  personal  cause  of 
action. 

The  decisions  in  the  federal  courts,  and  in  most  of  the  other  States, 
are  in  harmony  with  the  views  we  have  expressed  ;  and  so  are  the  doc- 
trines of  all  the  great  jurists  who  have  written  upon  the  subject  of 
private  international  law.  2  Bell's  Comm.  681,  687;  Wheaton's  Int. 
L.  [8th  ed.,  by  Dana],  §§  89,  90,  91,  144  and  note;  2  Kent's  Comm. 
405;  Wharton's  Confl.  of  Laws,  §§  353,  368,  391,  735,  736;  Story's 
Confl.  of  Laws,  §§  403,  410,  412,  414,  420,  421. 

There  are  but  two  cases  in  this  State  which  really  hold  anything  in 
conflict  with  these  views,  and  the}'  are  Mosselraan  v.  Caen  (34  Barb. 
66;  N.  Y.  Sup.  Ct.  [4  T.  &  C]  171).  In  the  first  case  the  action 
was  by  foreign  trustees,  appointed  in  bankruptcy  proceedings,  to  re- 
cover goods  in  the  possession  of  the  defendant  in  this  country,  and  the 
plaintiffs  recovered.  The  defendant  appealed,  and  sought  to  reverse 
the  judgment  upon  the  ground  that  the  plaintiffs  did  not,  as  trustees, 
have  any  title  to  the  property.  The  judgment  was  affirmed,  on  the 
ground  that  the  defendant  did  not  raise  the  question  of  title  at  the 
trial.  But  the  judges  writing  were  of  opinion  that  the  plaintiffs  did 
not  have  any  title  to  the  bankrupt's  property  located  here,  and  one  of 
them  (Sutherland,  J.)  stated  that  the  case  of  Abraham  r.  Plestoro 
(3  Wend.  538),  confirmed  by  Johnson  i\  Hunt,  "  woald  seem  to  be  con- 
clusive upon  the  question,  whether  our  courts  will  recognize  or  enforce 
a  right  or  title  acquired  under  a  foreign  bankrupt  law  or  foreign  bank- 


SECT.  III.]       SECURITY   TRUST    COMPANY    V.   DODD,   MEAD   &    CO.         709 

ruptc}'  judicial  proceedings.  The  case  of  Abraham  v.  Plestoro  was  cer- 
tainly very  broad  in  its  repudiation  of  foreign  bankruptcy  proceedings, 
and  went  much  further  than  the  case  of  Holmes  v.  Remsen  (20  Johns. 
229)  ;  but  I  think  it  must  be  deemed  conclusive  authority  for  saying, 
that  had  the  defendant  raised  the  question  by  demurrer,  or  ou  the  trial, 
it  must  have  been  held  that  the  plaintiffs  could  not  maintain  this 
action."  In  the  second  case  Davis,  P.  J.,  writing  the  opinion  of  the 
court,  said  :  "  It  seems  to  be  the  settled  law  of  this  State  that  our 
courts  will  not  recognize  or  enforce  a  right  or  title  acquired  under  a 
foreign  bankrupt  law,  or  foreign  bankrupt  proceedings,  so  far  as  affects 
property  within  their  jurisdiction,  or  demands  against  residents  of  the 
State."  These  two  cases  are  unsupported  by  authority,  and  are,  we 
think,  opposed  to  sound  principles,  and  are  in  conflict  with  the  current 
of  authority  in  this  State. 

We  are,  therefore,  of  opinion  that  Schofield  was  competent  to  appear 
upon  the  accounting  to  protect  the  interests  of  the  bankrupt  estate 
which  he  represented,  and  that,  upon  the  facts  as  they  appear  in  this 
record,  his  objection  to  the  allowance  of  the  pa^'ment  made  b}'  the 
assignee  to  himself  ought  to  have  prevailed,  and  that  he  should  be  re- 
cognized as  a  creditor  for  the  amount  of  such  pa3'ment. 

It  follows  that  the  orders  of  the  General  and  Special  Terms  should 
be  reversed,  and,  as  the  facts  may  be  varied  or  more  full}'  presented 
upon  a  new  hearing,  the  matter  should  be  remitted  to  the  Special  Term 
for  further  proceedings  upon  the  same  or  new  evidence,  in  accordance 
with  the  rules  of  law  herein  laid  down,  and  that  the  appellant  should 
recover  from  the  respondent  costs  of  the  appeals  to  the  General  Term 
and  to  this  court. 

All  concur.  Ordered  accordingly. 


SECURITY  TRUST  COMPANY  v.   DODD,   MEAD    &  CO. 

Supreme  Coukt  of  the  United  States.     1899. 

[Reported  173  United  States,  624.] 

This  was  an  action  originally  instituted  in  the  District  Court  for  the 
Second  Judicial  District  of  Minnesota,  by  the  Security  Trust  Company, 
as  assignee  of  the  D.  D.  Merrill  Company,  a  corporation  organized 
under  the  laws  of  Minnesota,  against  the  firm  of  Dodd,  Mead  &  Corn- 
pan}',  a  partnership  resident  in  New  York,  to  recover  the  value  of 
certain  stereotyped  and  electrotyped  plates  for  printing  books,  upon 
the  ground  that  the  defendants  had  unlawfully  converted  the  same  to 
their  own  use.  The  suit  was  duly  removed  from  the  State  court  to  the 
Circuit  Court  of  the  United  States  for  the  District  of  Minnesota,  and 
was  there  tried.     Upon  such  trial  the  following  facts  appea'-ed  :  — 


710      SECUKITY   TRUST    COMPANY   V.   DODD,   MEAD   &    CO.      [CHAP.  XIV. 

The  D.  D.  Merrill  Company  having  become  insolvent  and  unable  to 
pay  its  debts  in  the  usual  course  of  business,  on  September  23,  1893, 
executed  to  the  Security  Trust  Company,  the  plaintiff  in  error,  an  as- 
signment under  and  pursuant  to  the  provisions  of  chapter  148  of  the 
laws  of  1881  of  the  State  of  Minnesota,  which  assignment  was  properly 
filed  in  the  office  of  the  clerk  of  the  District  Court.  The  Trust  Company 
accepted  the  same,  qualified  as  assignee,  took  possession  of  such  of  the 
property  as  was  found  in  Minnesota,  and  disposed  of  the  same  for  the 
benefit  of  creditors,  the  firm  of  Dodd,  Mead  &  Company  having  full 
knowledge  of  the  execution  and  filing  of  such  assignment. 

At  the  date  of  this  assignment,  the  D.  D.  Merrill  Company  was 
indebted  to  Dodd,  Mead  &  Company  of  New  York  in  the  sum  of 
$1,249.98,  and  also  to  Alfred  Mudge  &  Sons,  a  Boston  co-partnership 
in  the  sum  of  §126. 80,  which  they  duly  assigned  and  transferred  to 
Dodd,  Mead  &  Company,  making  the  total  indebtedness  to  them 
$1,376.78. 

Prior  to  the  assignment,  the  D.  D.  Merrill  Company  was  the  owner 
of  the  personal  property  for  the  value  of  which  this  suit  was  brought. 
This  property  was  in  the  custody  and  possession  of  Alfred  Mudge  & 
Sons  at  Boston,  Massachusetts,  until  the  same  was  attached  by  the 
sheriff  of  Suffolk  County,  as  hereinafter  stated. 

The  firm  of  Alfred  Mudge  and  Sons  was,  prior  to  March  8,  1894, 
informed  of  the  assignment  by  the  Merrill  Compan}',  and  at  about  the 
date  of  such  assignment  a  notice  was  served  upon  them  by  George  E. 
Merrill  to  the  effect  that  he  Merrill,  took  possession  of  the  property 
in  their  custody  for  and  in  behalf  of  the  Security  Trust  Company,  as- 
signee aforesaid. 

On  March  8,  1894,  Dodd,  Mead  &  Company  commenced  an  action 
against  the  D.  D.  Merrill  Compan}^  in  the  superior  court  of  the  count}' 
of  Suffolk,  upon  their  indebtedness,  caused  a  writ  of  attachment  to  be 
issued,  and  the  propert}'  in  possession  of  Mudge  &  Sons  seized  upon 
such  writ.  A  summons  was  served  by  publication  in  the  manner  pre- 
scribed by  the  Massachusetts  statutes,  although  there  was  no  personal 
service  upon  the  Merrill  Company.  The  Security  Trust  Companv,  its 
assignee,  was  informed  of  the  bringing  and  pendency  of  this  suit  and 
the  seizure  of  the  property,  prior  to  the  entering  of  a  judgment  in  said 
action,  which  judgment  was  duly  rendered  August  6,  1894,  execution 
issued,  and  on  September  27,  1894,  the  attached  property  was  sold  at 
public  auction  to  Dodd,  Mead  &  Company,  the  cj^ecution  creditors,  for 
the  sum  of  $1,000. 

Upon  this  state  of  facts,  the  Circuit  Court  of  Appeals  certified  to 
this  court  the  following  questions  :  — 

''  First,  Did  the  execution  and  delivery  of  the  aforesaid  deed  of 
assignment  by  the  I).  D.  Merrill  Company  to  the  Security  Trust  Com- 
pany and  the  acceptance  of  the  same  by  the  latter  company  and  its 
qualification  as  assignee  thereunder,  vest  said  assignee  with  the  title 
to  the  personal  property  aforesaid,  then  located  in  the  State  of  Massa- 


SECT.  III.]      SECURITY   TRUST   COMPANY   V.   DODD,   MEAD   &   CO.         711 

cliusetts,  and  in  the  custody  and  possession  of  said  Alfred  Mudge  & 
Sons  ? 

"  Second.  Did  the  execution  and  deliver}-  of  said  assignment  and 
the  acceptance  thereof  by  the  assignee  and  its  qualification  thereunder, 
in  the  manner  aforesaid,  together  with  the  notice  of  such  assignment 
which  was  given,  as  aforesaid,  to  Alfred  Mudge  &  Sons  prior  to  March 
8,  1894,  vest  the  Security  Trust  Company  with  such  a  title  to  the  per- 
sonal propert}'  aforesaid  on  said  March  8,  1894,  that  it  could  not  on 
said  da}'  be  lawfully  seized  by  attachment  under  process  issued  by  the 
superior  court  of  Suffolk  County,  Massachusetts,  in  a  suit  instituted 
therein  by  creditors  of  the  U.  D.  Merrill  Company,  who  were  residents 
and  citizens  of  the  State  of  New  York,  and  who  had  notice  of  the  as- 
signment but  had  not  proven  their  claim  against  the  assigned  estate 
nor  filed  a  release  of  their  claim  ?  " 

Brown,  J.  This  case  raises  the  question  whether  an  assignee  of  an 
insolvent  Minnesota  corporation  can  maintain  an  action  in  the  courts 
of  Minnesota  for  the  conversion  of  property  formerly  belonging  to  the 
insolvent  corporation,  which  certain  New  York  creditors  had  attached 
in  Massachusetts,  and  sold  upon  execution  against  such  corporation. 
The  question  was  also  raised  upon  the  argument  how  far  an  assign- 
ment, executed  in  Minnesota,  pursuant  to  the  general  assignment  law 
of  that  State,  by  a  corporation  there  resident,  is  available  to  pass  per- 
sonal property  situated  in  Massachusetts  as  against  parties  resident  in 
New  York,  who,  subsequent  to  the  assignment,  had  seized  such  prop- 
erty upon  an  attachment  against  the  insolvent  corporation. 

The  assignment  was  executed  under  a  statute  of  Minnesota,  the 
material  provisions  of  which  are  hereinafter  set  forth.  The  instrument 
makes  it  the  duty  of  the  assignee  "  to  pay  and  discharge,  in  the  order 
and  precedence  provided  by  law,  all  the  debts  and  liabilities  now  due 
or  to  become  due  from  said  party  of  the  first  part,  together  with  all  in- 
terest due  and  to  become  due  thereon,  to  all  its  creditors  who  shall  file 
releases  of  their  debts  and  claims  against  said  party  of  the  first  part, 
according  to  chapter  148  of  the  General  Laws  of  the  State  of  Minne- 
sota for  the  year  1881,  and  the  several  laws  amendatory  and  supple- 
mentary thereof,  and  if  the  residue  of  said  proceeds  shall  not  be 
sufficient  to  pay  said  debts  and  liabilities  and  interest  in  full,  then  to 
apply  the  same  so  far  as  they  will  extend  to  the  payment  of  said  debts 
and  liabilities  and  interest,  proportionately  on  their  respective  amounts, 
according  to  law  and  the  statute  in  such  case  made  and  provided  ;  and 
if,  after  the  payment  of  all  the  costs,  charges,  and  expenses  attending 
the  execution  of  said  trust,  and  the  payment  and  discharge  in  full  of 
all  the  said  debts  of  the  party  of  the  first  part,  there  shall  be  any  sur- 
plus of  the  said  proceeds  remaining  in  tlic  hands  of  the  party  of  the 
second  part,  then,  Third,  repay  such  surplus  to  the  party  of  the  first 
part,  its  successors  and  assigns." 

The  operation  of  voluntary  or  common  law  assignments  upon  prop- 
erty situated  in  other  States  has  been  the  suliject  of  frequent  discu*- 


712      SECURITY   TRUST   COMPANY   V.    DODD,   MEAD   &    CO.       [CHAP.  XIV. 

s\6n  in  the  courts,  and  there  is  a  general  consensus  of  opinion  to  the 
effect  that  sueli  assignments  will  lie  respected,  except  so  far  as  they 
come  in  conflict  with  the  rights  of  local  creditors,  or  with  the  laws  or 
public  policy-  of  the  State  in  which  the  assignment  is  sought  to  be  en- 
forced.    The  cases  in  this  court  are  not  numerous,  but  they  are  all 
consonant    with    the    above    general    principle.      Black    v.    Zacharie, 
3  How.  483  ;  Livermore  r.  Jenckes,  21  How.  126;  Green  v.  Van  Bus- 
kirk,  5  Wall.  3U7  ;  Hervey  v.  R.  I.  Locomotive  Works,  93  U.  8.  664  ; 
Colo  V.  Cunningham,  133  U.  S.  107  ;  Barnett  v.  Kinney,  147  U.  S.  476. 
But  the  rule  with  respect  to  statutory  assignments  is  somewhat  dif- 
ferent.     While  the  authorities  are   not  altogether  harmonious,  the  pre- 
vailing American  doctrine  is  that  a  conveyance  under  a  State  insolvent 
law  operates  only  upon  property  within  the  territory  of  that  State,  and 
that  with  respect  to  property  in  other  States  it  is  given  only  such  effect 
as  the  laws  of  such  State  permit ;  and  that,  in  general,  it  must  give 
way  to  claims  of  creditors  pursuing  tlieir  remedies  there.     It  passes  no 
title  to  real  estate  situated  in  another   State.     Nor,    as    to   personal 
property,  will  the  title  acquired  by  it  prevail  against  the  rights  of  at- 
taching creditors  under  the  laws  of  the  State  where  the   property  is 
actually  situated.     Harrison   v.  Sterry,  5  Cranch,    289,    302  ;    Ogden 
V.  Saunders,  12  Wheat.  213;   Booth  v.  Clark,  17  How.  322;  Blak°e  v. 
AVilliaras,    6   Pick.   286;  Osborn   v.   Adams,   18  Pick.  245;  Zipcey  v. 
Thompson,   1    Gray,   243  ;  Abraham   v.   Plestoro,  3  Wend.  538,  over- 
ruling Holmes  v.  Remsen,  4  Johns.  Ch.  460;  Johnson   v.   Hunt,    23 
Wend.  87;  Hoyt  v.  Thompson,  5  N.  Y.  320;   Willitts  y.  Waite,  25 
N.  Y.  577  ;  Kelly  v.  Crapo,  45  N.  Y.  86  ;  Barth  v.  Backus,  140  N.  Y. 
230;  Weider  v.   Maddox,    66    Tex.  372;  Rhawn  v.  Pearce,    110    111. 
350;  Catlin  v.  Wilcox  Silver  Plate  Co,  123  Ind.  477.     As  was  said 
by  Mr.  Justice  McLean  in  Oakey  v.  Bennett,   11   How.   33,  44,  ''A 
statutable  conveyance  of  property  cannot  strictly  operate  beyond  the 
local  jurisdiction.     Any  effect  which  may  be  given  to  it  beyond  this 
does  not  depend  upon  international  law,  but  the  principle  of  comity  ; 
and  national  comity  does  not  require  any  government  to  give  effect  to 
such  assignment  when  it  shall  impair  the  remedies  or  lessen  the  secur- 
ities of  its  own  citizens.     And  this  is  the  prevailing  doctrine  in  this 
country.     A  iiroceeding  in  rem  against  the  property  of  a  foreign  bank- 
rupt, under  our  local  laws,  may  be  maintained  by  creditors,  notwith- 
standing the  foreign  assignment."     Similar  language  is  used  by  Mr. 
Justice  Story  in  his  Conflict  of  Laws,  §  414.^ 

The  statute  of  Minnesota,  under  which  this  assignment  was  made, 
provides  in  its  first  section  that  any  insolvent  debtor  "  may  make  an 

1  Ace.  Le  Chevalier  t>.  Lynch,  1  Doug,  im  ;  Reynolds  v.  Adden,  136  IJ.  S.  348; 
Betton  V.  Valentine,  1  Curt.  168  ;  Paine  i-.  Lester,  44  Conn.  196  ;  Rhawn  v.  Pearce, 
110  111.  S.^O-  Johnson  v.  Parker,  4  Bush.  149  (scmblc) ;  Metcalf  v.  Yeaton,  51  Me. 
198  ;  Wood  r.  Parsons,  27  Mich.  159;  Beer  v.  Hooper,  32  Miss.  246  ;  Hoyt  v.  Thomp- 
son, 19  y.  Y.  207  ;  Bizzell  v.  Bedient,  2  Car.  L.  Rep.  254  ;  Milne  v.  More'ton.  6  Binn. 
353;  Goodsell  v.  Benson,  13  R.  I.  225  (semhlr)  ;  McClure  v.  Campbell,  71  Wis.  350, 
37  N.  W.  343.     Contra,  Long  v.  Girdwood,  150  Pa.  413,  24  Atl.  711.  —  ¥a). 


SECT.  III.]       SECURITY   TKUST   COMPANY   V.   DODD,   MEAD    &   CO.         713 

assignment  of  all  his  unexempt  property  for  the  equal  benefit  of  all  his 
bofia  fide  creditors,  who  shall  file  releases  of  their  demands  against 
such  debtor,  as  herein  provided."  Thai  such  assignments  shall  be 
acknowledged  and  filed,  and  if  made  within  ten  days  after  the  assign- 
or's propert}'  has  been  garnished  or  levied  upon,  shall  operate  to  vacate 
such  garnishment  or  levy  at  the  option  of  the  assignee,  with  certain 
exce^jtions.  The  second  section  provides  for  putting  an  insolvent 
debtor  into  involuntary  bankruptcy  on  petition  of  his  creditors,  upon 
his  committing  certain  acts  of  insolvenc}',  and  for  the  appointment  b}' 
the  court  of  a  receiver  with  power  to  take  possession  of  all  his  proi)- 
ert}',  not  exempt,  and  distribute  it  among  his  creditors.  Under  either 
section  onlv  those  creditors  receive  a  benefit  from  the  act  who  file  re- 
leases to  the  debtor  of  all  their  demands  against  him.  This  statute 
was  held  not  to  conflict  with  the  Federal  Constitution  in  Denny  v. 
Bennett,  128  U.  S.  489. 

The  construction  given  to  this  act  by  the  Supreme  Court  of  Minnesota 
has  not  been  altogether  uniform.  In  "Wendell  v.  Lebon,  30  Minn. 
234,  the  act  was  held  to  be  constitutional.  It  was  said  tliat  '•  the  act 
in  its  essential  features  is  a  bankrupt  law;"  but  it  was  intimated  that 
it  included  all  the  debtor's  property  wherever  situated;  "and  while 
otiier  jurisdictions  might,  on  grounds  of  polic}',  give  preference  to 
domestic  attaching  creditors  over  foreign  assignees  or  receivers  in 
bankruptc}',  yet.  subject  to  this  exception,  they  would,  on  principles 
of  comity,  recognize  the  rights  of  such  assignees  or  receivers  to  the 
possession  of  the  propert}-  of  the  insolvent  debtor." 

In  III  re  Mann,  32  Minn.  60,  the  act  was,  in  effect,  again  pro- 
nounced "  a  bankrupt  law,  providing  for  voluntary  bankruptcy  by  the 
debtor's  assignment;"  and  in  this  respect  differing  from  a  previous 
assignment  law.     See  also  Simon  v.  Mann,  33  Minn.  412,  414. 

In  Jenks  v.  Ludden,  34  Minn.  482,  it  was  held  that  the  courts 
of  that  State  had  no  right  to  enjoin  the  defendant,  who  was  a  citizen 
of  Minnesota,  from  enforcing  an  attachment  lien  on  certain  real  prop- 
erty in  "Wisconsin  owned  by  the  insolvent  debtors,  although  the  exe- 
cution of  the  assignment  might,  under  the  Minnesota  statute,  have 
dissolved  such  an  attachment  in  that  State;  and  that,  even  if  the}'  had 
the  power  to  do  so,  the}'  ought  not  to  exercise  their  discretion  in  that 
case,  where  the  only  effect  might  be  to  enable  non-resident  creditors  to 
step  in  and  appropriate  the  attached  property.  The  court  repeated 
the  doctrine  of  the  former  case,  that  the  act  was  a  bankrupt  act ;  the 
assignee  being  in  eflfect  an  officer  of  the  court,  and  the  assigned  prop- 
erty being  in  custodia  legis,  and  administered  by  the  court  or  under  its 
direction.  The  court  added  :  ''"V\"e  may  also  take  it  as  settled  that  the 
question  whether  property  situated  in  Wisconsin  is  subject  to  attach- 
ment or  levy  by  creditors,  notwithstanding  any  assignment  made  in 
another  State,  is  to  be  determined  exclusively  by  the  laws  of  Wiscon- 
sin." To  the  same  effect  see  Daniels  v.  Palmer,  35  Minn.  347 ; 
Warner  v.  Jafl^ray,  96  N.  Y.  248. 


714      SECURITY   TRUST   COMPANY   V.   DODD,   MEAD    &   CO.      [CHAP.  XIV. 

Upon  the  other  hand,  in  Covey  v.  Cutler,  55  Minn.  18,  an  in- 
solvent debtor  who  had  made  an  assignment  under  this  statute,  liad  a 
certain  amount  of  salt  in  Wisconsin,  which  the  defendants  had  attached 
in  a  Wisconsin  court.  The  salt  was  sold  upon  the  judgment,  bid  in  by 
them,  and  the  assignee  in  Minnesota  brought  an  action  to  recover  the 
value  of  the  salt.  Defendants  answered,  claiming  that  the  assignee 
never  took  possession  of  the  salt,  and  that  the  Minnesota  assignment 
was  ineffectual  to  transfer  the  title  to  property  in  Wisconsin  as  against 
attaching  creditors  there.  Plaintiff  was  held  entitled  to  judgment  upon 
the  ground  that  a  voluntary  conveyance  of  peisonal  property,  valid  by 
the  law  of  the  place,  passed  title  wherever  the  property  may  be  situated 
and  that  such  transfers,  upon  principles  of  comity,  would  be  recognized 
as  effectual  in  other  States  when  not  opposed  to  public  policy  or  repug- 
nant to  their  laws.  It  is  difficult  to  reconcile  this  with  the  previous 
cases,  or  with  that  of  Green  v.  Van  Buskirk,  7  Wall.  139.  The  as- 
signment was  apparently  treated  as  a  voluntary  or  common  law  assign- 
ment. This  ruling  was  repeated  in  Hawkins  v.  Ireland,  64  Minn. 
339,  in  which  an  assignment  under  this  statute  was  said  not  to  be  in- 
voluntary but  voluntary',  and  that  a  court  of  equity  had  the  power  to, 
and  would,  restrain  one  of  its  own  citizens,  of  whom  it  had  jurisdiction, 
from  prosecuting  an  action  in  a  foreign  State  or  jurisdiction,  whenever 
the  facts  of  the  case  made  it  necessary  to  do  so,  to  enable  the  court  to 
do  justice  and  prevent  one  of  its  citizens  from  taking  an  inequitable 
advantage  of  another.  This  accords  with  Dehon  v.  Foster,  4  Allen, 
545,  and  Cunningham  v.  Butler,  142  Mass.  47  ;  s.  c,  sub  nom.  Cole 
V.  Cunningham,  133  U.  S.  107. 

The  earlier  opinions  of  the  Supreme  Court  of  Minnesota  to  the  effect 
that  the  statute  in  question  was  a  bankrupt  act,  were  followed  by 
the  Supreme  Court  of  Wisconsin  in  McClure  v.  Campbell,  71  Wis. 
350,  in  which  it  was  held  that  the  assignment  could  have  no  legal 
operation  out  of  the  State  in  which  the  proceedings  were  had,  and  that 
the  decision  of  the  Supreme  Court  of  Minnesota  that  the  act  of  1881 
was  a  bankrupt  act  was  binding.  The  contest  was  between  the  as- 
signee of  the  insolvent  debtor  and  a  creditor  who  had  attached  the 
property  of  the  insolvent  in  Wisconsin.  The  court  held  that  the  plaintiff, 
the  assignee,  took  no  title  to  such  property,  and  was  not  entitled  to  its 
proceeds.  In  delivering  the  opinion  tiie  court  said  :  "We  think  the 
question  is  not  affected  by  the  fact  that  the  property,  when  seized, 
was  in  the  possession  of  the  assignee,  or  that  the  attacliing  creditor  is 
a  resident  of  the  State  in  which  the  insolvency  or  bankruptc}-  proceed- 
ings were  had.  .  .  .  While  some  of  them"  (the  cases)  "  ma3%  under 
especial  circumstances,  extend  the  rule  of  comity  to  such  a  case,  and 
thus  give  an  extraterritorial  effect  to  somewhat  similar  assignments, 
we  are  satisfied  that  the  great  weight  of  authority  is  the  other  way. 
The  rule  in  tliis  countrv  is,  we  think,  tliat  assignments  by  operation 
of  law  in  bankruptcy  or  insolvency  proceedings,  under  which  debts 
may  be  comijulsoril}-  discharged  witliout  full  payment   thereof,   can 


SECT.  III.]       SECURITY   TRUST   COMPANY   V.   DODD,   MEAD   &   CO.         715 

have  no  legal  operation  out  of  the  State  in  which  such  proceeding8 
were  had." 

In  Franzen  v.  Hutchinson,  94  Iowa,  95,  62  N.  "W.  Rep.  698,  the 
Supreme  Court  of  Iowa  had  this  statute  of  Minnesota  under  considera- 
tion, and  held  that  as  the  creditors  received  no  benefit  under  the  as- 
signment, unless  the}'  first  filed  a  release  of  all  claims  other  than  such 
as  might  be  paid  under  the  assignment,  it  would  not  be  enforced  in 
Iowa.  It  was  said  that  the  assignment,  which  was  that  of  an  insurance 
compan}',  was  invalid,  and  that  in  an  action  by  the  assignee  for  pre- 
miums collected  by  the  defendants,  who  were  agents  of  the  compan}', 
the  latter  could  oflfset  claims  for  unearned  premiums  held  b}'  policy 
holders  at  the  time  of  the  assignment  and  by  them  assigned  to  defend- 
ants after  the  assignment  to  plaintiffs. 

Notwithstanding  the  two  later  cases  in  Minnesota  above  cited,  we 
are  satisfied  that  the  Supreme  Court  of  that  State  did  not  intend  to 
overrule  the  prior  decisions  to  the  effect  that  the  act  was  substantiall}' 
a  bankrupt  or  insolvent  law.  It  is  true  that  in  these  cases  a  broader 
eflfect  was  given  to  this  act  with  respect  to  property  in  other  States 
than  is  ordinarily  given  to  statutory  assignments,  though  voluntary  in 
form.  But  the  court  was  speaking  of  its  power  over  its  own  citi- 
zens, who  had  sought  to  obtain  an  advantage  over  the  general  cred- 
itors of  the  insolvent  by  seizing  his  property  in  another  State.  There 
was  no  intimation  that  the  prior  cases  were  intended  to  be  overruled, 
nor  did  the  decisions  of  the  later  cases  require  that  they  should  be. 

So  far  as  the  courts  of  other  States  have  passed  upon  the  question, 
they  have  generally  held  that  an}'  State  law  upon  the  subject  of  assign- 
ments, which  limits  the  disti'ibution  of  the  debtor's  property  to  such  of 
his  creditors  as  shall  file  releases  of  their  demands,  is  to  all  intents  and 
purposes  an  insolvent  law ;  that  a  title  to  personal  property  acquired 
under  such  laws  will  not  be  recognized  in  another  State,  when  it  comes 
in  conflict  with  the  rights  of  creditors  pursuing  their  remed}'  there 
against  the  property  of  the  debtor,  though  the  proceedings  were  insti- 
tuted subsequent  to  and  with  notice  of  the  assignment  in  insolvency. 
The  provision  of  the  statute  in  question  requiring  a  release  from  the 
creditors  in  order  to  participate  in  the  distribution  of  the  estate,  oper- 
ates as  a  discharge  of  the  insolvent  from  his  debts  to  such  creditors  — 
a  discharge  as  complete  as  is  possible  under  a  bankrupt  law.  An  as- 
signment containing  a  provision  of  this  kind  would  have  been  in  man}', 
perhaps  in  most,  of  the  States  void  at  common  law.  Grover  v.  Wake- 
man,  11  Wend.  187  ;  Ingraham  v.  Wheeler,  6  Conn.  277  ;  Atkinson  v. 
Jordan,  5  Hamm.  293 ;  Burrill  on  Assignments,  232  to  256.  As 
was  said  in  Conkling  v.  Carson,  11  111.  503  :  "  A  debtor  in  failing  cir- 
cumstances has  an  undoubted  right  to  prefer  one  creditor  to  another, 
and  to  provide  for  a  preference  by  assigning  his  effects  ;  but  he  is  not 
permitted  to  say  to  any  of  his  creditors  that  they  shall  not  participate 
in  his  present  estate,  unless  they  release  all  right  to  satisfy  the  residue 
of  their  debts  out  of  his  future  acquisitions."     In  Brashear  v.  West, 


716      SECURITY    TEUST   COMPANY   V.    DODD,   MEAD   &   CO.       [CHAP.  XIV. 

7  Pet.  G08,  an  assignment  containing  a  provision  of  this  kind  was  up- 
held with  apparent  reluctance  solel}-  upon  the  ground  that  in  Penn- 
sylvania, where  the  assignment  was  made,  it  had  been  treated  as  valid. 
If  the  assignment  contain  this  feature,  the  fact  that  it  is  executed  vol- 
untarily and  not  in  invitum  is  not  a  controlling  circumstance.  In 
some  States  a  foreign  assignee  under  a  statutory  assignment,  good  by 
the  law  of  the  State  where  made,  may  be  permitted  to  come  into  such 
State  and  talie  possession  of  the  property  of  the  assignor  there  found, 
and  withdraw  it  from  the  jurisdiction  of  that  State  in  the  absence  of 
any  objection  thereto  by  the  local  creditors  of  the  assignor ;  but  in 
such  case  the  assignee  takes  the  property  subject  to  the  equity  of  at- 
taching creditors,  and  to  the  remedies  provided  by  the  law  of  the 
State  where  such  property  is  found. 

A  sonftwhat  similar  statute  of  Wisconsin  was  held  to  be  an  insolvent 
law  in  Earth  v.  Backus,  140  N.  Y.  230,  and  an  assignment  under  such 
statute  treated  as  ineffectual  to  transfer  the  title  of  the  insolvent  to 
property  in  New  York,  as  against  an  attaching  creditor  there,  though 
such  creditor  was  a  resident  of  Wisconsin.  A  like  construction  was 
given  to  the  same  statute  of  Wisconsin  in  Townsend  v.  Coxe,  151  111. 
62.  It  was  said  of  this  statute  (and  tlie  same  ma}'  be  said  of  the 
statute  under  consideration),  "It  is  manifest  from  these  provisions 
that  a  creditor  of  an  insolvent  debtor  in  Wisconsin,  who  makes  a  vol- 
untary assignment,  valid  under  the  laws  of  that  State,  can  only  avoid 
a  final  discharge  of  the  debtor  from  all  liability  on  his  debt,  by  declin- 
ing to  participate  in  any  way  in  the  assignment  proceedings.  He  is, 
therefore,  compelled  to  consent  to  a  dischai-ge  as  to  so  much  of  his 
debt  as  is  not  paid  by  dividends  in  the  insolvent  proceedings  or  take 
the  hopeless  chance  of  recovering  out  of  the  assets  of  the  assigned 
estate  remaining  after  all  claims  allowed  have  been  paid."  To  the 
same  effect  are  Upton  v.  Hubbard,  28  Conn.  274  ;  Paine  v.  Lester,  44 
Conn.  196;  Weider  r.  Maddox,  66  Tex.  372;  Catlin  v.  Wilcox  Sil- 
ver Plate  Co.,  123  Ind.  477  ;  Boese  v.  King,  78  N.  Y.  471. 

In  Taylor  r.  Columbia  Insurance  Co.,  14  Allen,  353,  it  is  broadly 
stated  that  "■  when,  upon  the  insolvency  of  a  debtor,  the  law  of  the 
State  in  which  he  resides  assumes  to  take  his  property  out  of  his  con- 
trol, and  to  assign  it  by  judicial  proceedings,  without  liis  consent,  to 
trustees  for  distribution  among  his  creditors,  such  an  assignment  will 
not  be  allowed  by  the  courts  of  anotlier  State  to  prevail  against  any 
remedy  which  the  laws  of  the  latter  afford  to  its  own  citizens  against 
property  within  its  jurisdiction."  But  the  weight  of  authority  is,  as 
already  stated,  that  it  makes  no  difference  whether  the  estate  of  the 
insolvent  is  vested  in  the  foreign  assignee  under  proceedings  instituted 
against  the  insolvent  or  upon  the  voluntary  application  of  the  insolvent 
himself.  The  assignee  is  still  the  agent  of  the  law,  and  derives  from 
It  his  authority.     Upton  r.  Hubbard,  28  Conn.  274. 

'While  it  may  be  true  tliat  the  assignment  in  question  is  good  as  be- 
tween the  assignor  and  the  assignee,  and  as  to  assenting  creditors,  to 


SECT.  IV.]  ANON    V.   LYNDSEY.  717 

pass  title  to  propert}'  both  within  and  without  the  State,  and,  in  the 
absence  of  objections  b}'  non-assenting  creditors,  may  authorize  the 
assignee  to  take  possession  of  the  assignor's  property  wherever  found, 
it  cannot  be  supported  as  to  creditors  who  have  not  assented,  and  who 
are  at  Hbertj-  to  pursue  their  remedies  against  such  property  of  the  as- 
signor as  the}'  may  find  in  other  States.  Bradford  v.  Tappan,  11  Pick. 
76;  Willitts  v.  Waite,  25  N.  Y.  577;  CatUu  v.  Wilcox  Silver  Plate 
Co.,  123  Ind.  477,  and  cases  above  cited. 

We  are  therefore  of  opinion  that  tlie  statute  of  Minnesota  was  in 
substance  and  effect  an  insolvent  law  ;  was  operative  as  to  property  in 
Massachusetts  onlv  so  far  as  the  courts  of  that  State  chose  to  respect 
it,  and  that  so  far  as  the  plaintiff,  as  assignee  of  the  D.  D.  Merrill 
Company,  took  title  to  such  property,  he  took  it  subservient  to  the  de- 
fendants' attachment.  It  results  that  the  property  of  the  D.  D.  Mer- 
rill Company  found  in  Massachusetts  was  liable  to  attachment  there  by 
these  defendants,  and  that  the  courts  of  Minnesota  are  bound  to  re- 
spect the  title  so  acquired  b}'  them. 

The  second  question  must  therefore  be  answered  in  the  negative, 
and  as  this  disposes  of  the  case,  no  answer  to  the  first  question  is 
necessary. 


SECTION   IV. 

ESTATES    IN    THE    HANDS    OF    RECEIVERS. 

ANON.   V.    LYNDSEY. 
Chancery.     1808. 

[Reported  45  Vesey  junior,  91.] 

A  MOTION  was  made  for  the  appointment  of  a  receiver  upon  an 

estate  in  the  East  Indies. 

The  Lord  Chancellor  [Lord  Eldon].  granting  the  motion,  said, 
the  rents  should  be  remitted  to  some  person  in  England,  who  may  pay 
them  into  the  bank. 

Sir  Samuel  Romilbj,  in  support  of  the  motion,  suggested  that  as 
a  receiver  in  India  would  be  out  of  the  jurisdiction,  some  person  in 
this  country  should  be  the  receiver,  who  might  appoint  his  own  agent 
in  India. 

The  Lord  Chancellor  approved  that  course,  and  said,  there  must 


718  LANGPORD  V.   LANGFORD.         [CHAP.  XIV. 

be  some  provision  to  prevent  the  necessit}"  of  applying  to  ttie  court 
from  time  to  time  for  permission  to  let. 

A  reference  was  accordingly  directed  to  the  Master  to  inquire  what 
should  be  the  term  beyond  which  the  receiver  should  not  be  permitted 
to  let.^ 


LANGFORD  v.   LANGFORD. 
Rolls  Court,  Chancery.     1835. 

[Reported  5  Law  Journal,  New  Series,  Chancery,  60.] 

Lord  Langford,  the  defendant  in  this  cause,  had  executed  a  settle- 
ment by  which  he  charged  his  Irish  estates  in  favor  of  the  plaintiff, 
Lady  Langford,  with  the  payment  of  an  annuity  during  her  life. 
The  annuity  fell  into  arrear,  and  the  defendant  being  in  England, 
Lad}'  Langford  instituted  this  suit  for  an  account  and  a  receiver. 
The  defendant  resisted  a  motion  for  a  receiver,  on  the  ground  that 
there  were  incumbrances  prior  to  the  annuity;  but  in  July,  1835, 
the  Master  of  the  Rolls  ordered  a  receiver,  who  was  appointed  in 
October.  The  order  appointing  the  receiver  was  dul}'  served  on  the 
tenants,  with  a  notice  to  pay  the  rents  to  such  receiver,  and  which 
the\'  were  willing  to  do.  Mr.  Murphy,  the  agent  of  the  defendant, 
however,  served  notices  on  the  tenants,  to  the  effect  "  that  the  order 
recently  served  upon  them,  as  made  by  the  English  Court  of  Chancery, 
was  of  no  force  or  effect  in  Ireland,  and  that,  notwithstanding  the 
service  of  the  said  order,  his  Lordship  would  require,  and  if  necessary 
enforce,  payment  of  his  rents  as  heretofore."  The  defendant,  Lord 
Langford,  by  his  affidavit  stated  that  he  had  given  no  authority 
whatever  to  his  agents  in  Ireland  to  demand  payment  of  the  rents 
of  the  said  estate,  or  to  distrain  upon  the  tenants  of  the  said  estate  ; 
but  he  admitted  that  he  had  instructed  his  solicitor  in  Ireland,  after 
giving  him  notice  of  the  said  order  made  b}-  this  court,  to  oppose, 
as  far  as  the  law  would  permit,  the  receivers  of  such  rents  and  profits 
from  receiving  the  same.  The  result  of  these  proceedings  was,  that 
the  English  receiver  was  unable  to  obtain  payment  of  any  of  the 
rents.^ 

3Ir.  Pemberton  and  3fr.  Bethel  now  moved  on  behalf  of  the  plain- 
tiff, that  a  commission  of  sequestration  might  issue,  to  sequester 
the  personal  estate  and  the  rents  and  property  of  the  real  estate  of 
the  defendant,  Lord  Langford,  for  the  contempt. 

Mr.  Bickersteth,  contra. 

1  A  receiver  was  appointed  to  take  charge  of  an  estate  abroad,  in  the  following 
cases:  Davis  v.  Barrett,  13  L.  J.  N.  S.  Oh.  304  (real  estate  in  West  Indies);  Hinton 
V.  Galli,  24  L.  J.  Ch.  121  (real  and  personal  estate  in  Italy:  unopposed).  Contra, 
Kittel  V.  Augusta,  T.  &  G.  R.  R.,  78  Fed.  855  ;  Harvey  v.  Varney,  104  Mass. 
436.  —  Ed. 

*  The  statement  of  facts  is  slightly  condensed.  —  Ed. 


SECT.    IV.]  SHIELDS   V.   COLEMAN.  719 

Pepts,  M.  R.  That  this  is  a  contempt  I  have  no  doubt.  It  is  true 
that  this  court  has  not  the  means  of  sending  its  officers  to  carry  into 
effect  its  orders  in  Ireland  ;  but  it  has  jurisdiction  over  all  persons 
in  this  country,  and  can  compel  obedience  to  its  orders.  The  defend- 
ant sends  to  his  solicitors  in  Ireland  to  oppose  b}'  all  lawful  means 
the  receiver  appointed  by  this  court  from  receiving  the  rents.  If  he 
meant,  by  all  lawful  means  in  this  counUy,  there  should  be  no  resist- 
ance at  all;  because  a  party  is  not  justified  in  opposing  the  order 
of  the  court;  but  he  says,  by  all  lawful  means  in  Ireland  —  that  is 
to  sa}',  because  this  court  cannot  send  its  process  into  Ireland,  there- 
fore Lord  Langford's  agent  is  to  use  all  means  in  Ireland  to  oppose 
the  order  of  the  court  here.  His  Honor  said  he  hoped  that  Lord 
Langford  would  see  his  error,  and  know  that  he  could  not  resist  the 
order  of  this  court ;  and  that  the  order  for  a  sequestration  must 
therefore  be  made,  unless  his  Lordship  ceased  to  interfere  with  the 
officer  of  the  court. 

A  motion  was  made  on  the  part  of  the  defendant,  before  the  Lords 
Commissioners  Shadwell  and  Bosanqdet,  to  discharge  the  order 
of  the  Master  of  the  Rolls  ;  when  the  same  was  refused,  with  costs.^ 


SHIELDS   V.   COLEMAN. 

Supreme  Court  of,  the  United  States.     1895. 

[Reported  157  United  States,  168.] 

The  facts  in  this  case  are  as  follows :  On  June  6,  1892,  in  a  suit  in 
the  Circuit  Court  of  the  United  States  for  the  Eastern  District  of  Ten- 
nessee, brought  by  John  Coleman  against  the  Morristown  and  Cumber- 
land Gap  Railroad  Compan}'  and  Allison,  Shafer  &  Company,  an  order 
was  entered  appointing  Frank  J.  Ho^'le  receiver  of  all  the  property  of 
the  railroad  compan}-.  The  bill  upon  which  this  order  was  made  al- 
leged that  in  1890  the  defendant  railroad  company  had  contracted  with 
its  co-defendants,  Allison,  Shafer  &  Company,  for  the  construction  of 
its  line  of  railroad  from  Morristown  to  Cornton,  a  distance  of  about 
fort}'  miles,  which  work  was  partially-  completed  in  February  or  March, 
1892;  that  there  was  3-et  due  from  the  railroad  company  to  Allison, 
Shafer  &  Company,  more  than  SoO,000;  that  Allison,  Shafer  &  Com- 
pany were  indebted  to  the  complainant  for  work  and  labor  done  in  the 
construction  of  such  railroad  ;  that  notice,  claiming  a  lien,  had  been 
duly  given  the  railroad  compan}',  and  that  it  was  insolvent,  as  were 
also  Allison,  Shafer  &  Company.  The  prayer  was  for  judgment 
against  Allison,  Shafer  &  Company,  that  the  amount  thereof  be  de- 
clared a  lien  upon  the  railroad  property,  and  for  the  appointment  of  a 
receiver  pending  the  suit. 

1  Ace.  Sercomb  v.  Catlin,  128  111.  556.  —  Ed. 


720  SHIELDS   V.    COLEMAN.  [CHAP.    XIV. 

In  pursuance  of  this  order  the  receiver  took  possession  of  the  rail- 
road. On  June  8,  1892,  the  railroad  compan}-  appeared  and  filed  a 
petition  for  leave  to  execute  a  bond  for  whatever  sum  might  be  decreed 
in  favor  of  the  complainant  and  that  the  order  appointing  the  receiver 
be  vacated.  This  petition  was  sustained,  the  bond  given  and  approved, 
and  an  order  entered  discharging  the  receiver.  Thereupon  the  receiver 
turned  the  property  over  to  the  railroad  company,  receiving  the  receipt 
of  its  general  manager  therefor. 

On  June  20,  1892,  T.  II.  McKoy,  Jr.,  filed  his  petition  in  the  same 
case,  setting  up  a  claim  against  the  railroad  company  for  services  ren- 
dered as  an  employe  and  vice-president  of  the  railroad  corapany,  and 
for  expenses  incurred  on  its  behalf.  On  July  4  and  July  7,  1892, 
other  petitions  were  filed  setting  up  further  claims  against  the  railroad 
company. 

On  July  27,  1892,  each  of  the  defendants  filed  a  separate  answer  to 
the  complainant's  bill.  No  further  order  was  made  by  the  Circuit 
Court  until  November  12,  1892,  when,  as  the  record  shows,  a  de- 
murrer of  the  railroad  company  to  the  petitions  filed  on  July  4  and 
Jul}'  7  was  argued  and  overruled,  and  leave  given  to  answer  on  or 
before  December  rules. 

Upon  complainant's  motion  for  the  restoration  of  the  receivership, 
W.  S.  Whitney  was  appointed  temporary  receiver  of  the  railroad  and 
its  property,  and  was  ordered  to  take  custody  and  control  of  the  prop- 
erty of  the  railroad  company.  On  November  29,  1892  an  amended 
and  supplemental  bill  was  filed,  which  stated  facts  sufficient  to  justify 
the  appointment  of  a  receiver. 

On  October  28,  1892,  a  bill  was  prepared  addressed  "  to  the  Honor- 
able John  P.  Smith,  chancellor,  etc.,  presiding  in  the  chancer}-  court 
at  Morristown,  Tennessee."  Tiiis  bill  was  in  the  name  of  sundry 
creditors  of  the  railroad  company  against  it,  and  other  parties,  setting 
forth  certain  judgments  in  favor  of  the  complainants  against  the  rail- 
road couipany  ;  its  insolvency  as  well  as  that  of  the  firm  of  Allison, 
Shafer  &  Company;  the  existence  of  a  multitude  of  unpaid  claims,  and 
prayed  the  appointment  of  a  receiver.  This  bill  having  been  presented 
to  the  Honorable  Joseph  W.  Sneed,  one  of  the  judges  of  the  State  of 
Tennessee,  he  issued,  on  the  same  day,  an  order  appointing  James  T. 
Shields,  Jr.,  temporary  receiver,  and  directed  him  to  take  possession 
of  all  the  property  of  the  comi)any,  and  to  operate  the  railroad. 

This  fiat  was  on  the  same  day  filed  in  the  office  of  the  clerk  of  the 
chancery  court,  and  the  receiver  therein  named  immediately  took 
possession  of  the  railroad  property  and  commenced  the  operation  of 
the  road.  His  possession  continued  until  November  14,  1892,  when 
the  receiver  appointed  by  the  Circuit  Court  of  the  United  States  took 
the  property  out  of  his  hands. 

On  January  7,  1893,  the  Tennessee  *court  continued  Shields  as  per- 
manent receiver,  and  ordered  him  to  intervene  in  the  present  suit. 

On  January  24,  1893,  the  receiver  J.  T.  Shields,  Jr.,  in  obedience 


SECT.    IV.J  SHIELDS    V.    COLEMAN.  721 

to  the  direction  of  the  chancellor,  filed  his  motion  in  the  Circuit  Court 
of  the  United  States,  setting  forth  the  facts  herein  stated,  and  praying 
that  court  to  vacate  its  order  appointing  W.  S.  Whitney  receiver  of  the 
road,  and  for  an  order  restoring  the  possession  to  him.  Tiiis  motion 
was  on  January  30,  1893,  overruled,  and  exception  duly  taken.  Sub- 
sequent proceedings  were  had  in  the  Circuit  Court  culminating  on 
January  31,  1894,  in  a  final  decree,  which  decree  established  certain 
liens,  and  ordered  the  property  to  be  sold. 

Thereafter  an  appeal  to  this  court  was  prayed  for  and  allowed  in 
behalf  of  the  receiver  appointed  b}'  the  State  court. ^ 

Brewer,  J.  The  single  question  presented  by  this  appeal  is  that  of 
the  jurisdiction  of  the  federal  court  to  appoint  a  receiver,  and  take 
the  railroad  property-  out  of  the  possession  of  the  receiver  appointed  by 
the  State  court.   .  .  . 

Hcd  the  Circuit  Court  of  the  United  States,  when  this  property  was 
in  the  possession  of  the  receiver  appointed  by  the  State  court,  the 
power  to  appoint  another  receiver  and  take  the  property  out  of  the 
former's  hands?  We  are  of  opinion  that  it  had  not.  For  the  purposes 
of  this  case  it  is  unnecessar}'  to  decide  whether,  as  between  courts  of 
concurrent  jurisdiction,  when  proceedings  are  commenced  in  the  one 
court  with  the  view  of  the  appointment  of  a  receiver,  they  maj-  be  con- 
tinued to  the  completion  of  actual  possession,  and  whether,  while  those 
proceedings  are  pending  in  a  due  and  orderly  wav,  the  other  court  can, 
in  a  suit  subsequently  commenced,  b}'  reason  of  its  speedier  modes  of 
procedure,  seize  the  property,  and  thus  prevent  the  court  in  which  the 
proceedings  were  first  commenced  from  asserting  its  right  to  the  pos- 
session. Gaylord  v.  Fort  Wayne,  &c.  Railroad,  6  Biss.  286-291, 
cited  in  Moran  v.  Sturges,  154  U.  S.  256-270 ;  High  on  Receivers,  3d 
ed.  §  50.  Of  course,  the  question  can  fairly  arise  only  in  a  case  in 
which  process  has  been  served,  and  in  v.'hich  the  express  object  of  the 
bill,  or  at  least  one  express  object,  is  the  appointment  of  a  receiver, 
and  where  possession  by  such  officer  is  necessar\'  for  the  full  accom- 
plishment of  the  other  purposes  named  therein.  The  mere  fact  that, 
in  the  progress  of  an  attachment  or  other  like  action,  an  exigenc}'  may 
arise,  which  calls  for  the  appointment  of  a  receiver,  does  not  make  the 
jurisdiction  of  the  court,  in  that  respect,  relate  back  to  the  commence- 
ment of  the  action. 

In  Heidritter  v.  Elizabeth  Oil-Cloth  Co.,  112  U.  S.  294,  301,  a  ques- 
tion was  pi'esented  as  to  the  time  that  jurisdiction  attaches.  Mr.  Jus- 
tice Matthews,  after  quoting  from  Cooper  v.  Reynolds,  10  Wall.  308, 
and  Boswell's  Lessee  v.  Otis,  9  How.  336,  observed:  "But  the  land 
might  be  bound,  without  actual  service  of  process  upon  the  owner,  in 
cases  where  the  only  object  of  the  proceedings  was  to  enforce  a  claim 
against  it  specifically,  of  a  nature  to  bind  the  title.  In  such  cases  the 
land  itself  must  be  drawn  within  the  jurisdiction  of  the  court  b}'  some 

1  The  statement  of  facts  has  been  abridged.  Part  of  the  opinion,  discussing  a  ques- 
tion of  practice,  and  other  part-s  deaUng  with  the  facts,  are  omitted. —  Ed. 

40 


722  SHIELDS  V.    COLEMAN.  fCHAP.    XIV. 

assertion  of  its  control  and  power  over  it.  Ttiis,  as  we  have  seen,  is 
ordinarily  done  by  actual  seizure,  but  may  be  done  by  the  mere  bring- 
ing of  the  suit  in  which  the  claim  is  sought  to  l)e  enforced,  whicli  may, 
by  law,  be  equivalent  to  a  seizure,  being  the  open  and  public  exercise 
of  dominion  over  it  for  the  purposes  of  the  suit." 

Undoubtedly  the  Circuit  Court  had  authority  under  the  bill  filed  June 
6,  1892,  to  make  the  order  appointing  the  receiver  and  taking  posses- 
sion of  the  property.  Even  if  it  were  conceded  that  the  bill  was  im- 
perfect and  that  amendments  were  necessary  to  make  it  a  bill  complete 
in  all  respects,  it  would  not  follow  that  the  court  was  without  jurisdic- 
tion. The  purpose  of  the  bill  —  the  relief  sought  —  was,  among  other 
things,  the  possession  of  the  property  by  a  receiver  to  be  appointed  by 
the  court,  and  when  the  court  adjudged  the  bill  sufficient,  and  made 
the  appointment,  that  appointment  could  not  be  questioned  by  another 
court,  or  the  possession  of  the  receiver  thus  appointed  disturbed.  The 
bill  was  clearly  sufficient  to  uphold  the  action  then  taken. 

While  the  validity  of  the  appointment  made  by  the  Circuit  Court  on 
June  6,  1892,  cannot  be  doubted,  yet,  when  that  court  thereafter  ac- 
cepted a  bond  in  lieu  of  the  property,  discharged  the  receiver,  and 
ordered  him  to  turn  over  the  property  to  the  railroad,  and  such  sur- 
render was  made  in  obedience  to  this  order,  the  property  then  became 
free  for  the  action  of  an}'  other  court  of  competent  jurisdiction.  It  will 
never  do  to  hold  that  after  a  court,  accepting  security  in  lieu  of  the 
property,  has  vacated  the  order  which  it  has  once  made  appointino"  a 
receiver  and  turned  the  property  back  to  the  original  owner,  the  mere 
continuance  of  the  suit  operates  to  prevent  an}-  other  court  from  touch- 
ing that  property. 

It  is  true  that  the  Circuit  Court  had  the  power  to  thereafter  set 
aside  its  order  accepting  security  in  place  of  the  property  and  enter  a 
new  order  for  taking  possession  by  a  receiver,  3-et  such  new  order 
would  not  relate  back  to  the  original  filing  of  the  bill  so  as  to  invalidate 
action  taken  by  other  courts  in  the  meantime.  Accepting  a  bond  and 
directing  the  receiver  to  return  the  property  to  the  owner  was  not 
simply  the  transfer  of  the  possession  from  one  officer  of  the  court  to 
another.  The  bond  which  was  given  was  not  a  bond  to  return  the 
propert}-  if  the  judgment  to  be  rendered  against  the  contractors  was 
not  paid,  but  a  bond  to  pay  whatever  judgment  should  be  rendered.  It 
was,  therefore,  in  no  sense  of  the  term  a  forthcoming  bond.  The 
property  ceased  to  be  in  citstodla  legis.  It  was  subject  to  any  rightful 
disposition  by  tlie  owner  or  to  seizure  under  process  of  any  court  of 
competent  jurisdiction. 

The  intervening  petitions  filed  on  June  20.  July  1,  and  July  7  aie 
not  copied  in  the  record,  having  been  omitted  therefrom  by  direction 
of  tlie  Circuit  Court.  Evidently,  therefore,  there  was  nothing  in  them 
which  bears  upon  the  question  before  us,  and  doubtless  they  were 
simply  intervening  petitions,  claiming  so  much  money  of  the  railroad 
company'  and  containing  no  reference  to  the  appointment  of  a  receiver. 


SECT.    IV.]  HURD   V.    CITY    OP   ELIZABETH.  723 

But  it  is  said  tliat  tiie  receiver  lias  no  such  interest  in  the  property 
as  will  give  him  a  standing  in  the  Circuit  Court  to  petition  for  the 
restoration  of  the  property  to  his  possession,  or  to  maintain  an  appeal 
to  this  court  from  an  order  refusing  to  restore  such  possession.  This 
is  a  mistake.  He  was  the  officer  in  possession  by  appointment  of  the 
State  court,  the  proper  one  to  maintain  possession  and  to  take  all 
proper  steps  under  the  direction  of  the  court  to  obtain  the  restoration 
of  the  possession  wrongfully  taken  from  him.  It  is  a  matter  of  every- 
da}-  occurrence  for  a  receiver  to  take  legal  proceedings,  under  the 
direction  of  the  court  appointing  him,  to  acquire  possession  of  prop- 
erty or  for  the  collection  of  debts  due  to  the  estate  of  which  he  is 
receiver.   .   .   . 

The  case,  therefore,  imist  be  remanded  to  the  Circuit  Court  for  far- 
ther proceedings  not  inconsistent  with  this  opinion} 


HURD   V.    CITY   OF  ELIZABETH. 
Supreme  Court  of  Judicature,  New  Jersey.     1879. 

\Reported  41  New  Jersey  Law,  1.]  , 

The  plaintiff  brought  this  suit  in  his  character  of  receiver  of  the 
Third  Avenue  Savings  Bank.  The  allegations  touching  his  right  to 
sue  were  the  following:  "  For  that  the  said  S.  H.  Hurd  heretofore, 
to  wit,  on  the  thirtieth  dav  of  November,  eighteen  hundred  and 
seventy-five,  at  the  city  of  Kingston,  in  the  State  of  New  York,  to 
wit,  at  Elizabeth,  in  said  county  of  Union,  was  duly  appointed  receiver 
of  the  Third  Avenue  Savings  Bank,  b}'  the  Supreme  Court  of  the 
State  of  New  York,  in  pursuance  of  the  laws  of  said  State  of  New 
York,  and  afterwards,  to  wit,  on  the  day  and  year  last  aforesaid, 
duly  qualified  as  such  receiver,  and  thereupon  became  empowered  to 
exercise  and  perform  all  the  powers  and  duties  imposed  upon  him 
as  receiver  as  aforesaid,  by  virtue  of  the  laws  of  the  State  of  New 
York  and  said  appointment,  and  particularly  by  said  laws  and  his 
said  appointment,  became  seized  and  possessed  of  the  personal  prop- 
erty and  choses  in  action  of  the  said  the  Third  Avenue  Savings  Bank, 
and  entitled  to  sue  for,  collect,  and  receive  all  moneys  then  due  to  the 
said  the  Third  Avenue  Savings  Bank,  and  particularly  the  several 
sums  hereinafter  mentioned." 

The  declaration  then  showed,  in  the  form  of  common  counts,  sundry 
moneys  due,  antecedently  to  the  receivership,  to  the  savings  bank, 
and  concluded  in  the  usual  style.     The  defendant  demurred. 

Beasley,  C.  J.  The  plaintiff's  right  to  stand  as  the  actor  in 
this  suit  is  derived  wholly  from  the  receivership  that  was  conferred 

1  See  In  re  Schuyler's  Steam  Tow  Boat  Co.,  136  N.  Y.  169,  32  N.  E.  623.  —  Ed. 


724  HURD    V.    CITY    OF    ELIZABETH.  [CHAP.    XIV. 

upon  him  by  the  Supreme  Court  of  the  State  of  New  York  ;  and  on 
the  part  of  the  defendant,  such  right  is  contested  on  the  ground  that 
it  is  contrary  to  established  rules  for  the  courts  here  to  lend  their 
assistance  in  carrying  into  effect  an  office  created  in  the  course  of  a 
proceeding  before  a  foreign  tribunal.  To  countenance  this  contention 
various  authorities  are  cited,  and  notably  among  them  that  of  Booth 
V.  Clark,  17  How.  322.  But  that  case  belongs  to  a  train  of  decisions 
which  have  been  undoubtedly  rightl}-  decided,  but  which  are  not  to  be 
regarded  as  ruling  the  precise  point  now  in  issue.  The  decisions  thus 
referred  to  will  be  found  in  High  on  Receivers,  §  239,  and  they  are 
all  cases  involving  a  controvers}'  between  the  receiver  and  the  cred- 
itors of  the  person  whose  property  has  been  placed  under  the  control 
of  such  receiver.  In  such  a  posture  of  things  it  is  manifest  that  dif- 
ferent considerations  should  have  force  from  those  that  are  to  control 
when  the  litigation  does  not  involve  the  rights  of  creditors  in  opposi- 
tion to  the  claims  of  the  receiver.  That  the  officer  of  a  foreign  court 
should  not  be  permitted,  as  against  the  claims  of  creditors  resident 
here,  to  remove  from  this  State  the  assets  of  the  debtor,  is  a  propo- 
sition that  appears  to  be  asserted  by  all  the  decisions ;  but  that, 
similarl}',  he  should  not  be  permitted  to  remove  such  assets  when 
creditors  are  not  so  interested,  is  quite  a  different  affair,  and  it  may, 
perhaps,  be  safely  said  that  this  latter  doctrine  has  no  direct  authority 
in  its  favor.  There  are  certainly  dicta  that  go  even  to  that  extent, 
so  that  text-writers  seem  to  have  felt  themselves  warranted  in  declar- 
ing that  the  powers  of  an  officer  of  this  kind  are  strictly  circumscribed 
b}-  the  jurisdictional  limits  of  the  tribunal  from  which  he  derives  his 
existence,  and  that  he  will  not  be  recognized  as  a  suitor  outside  of 
such  limits.  But  I  think  the  more  correct  definition  of  the  legal  rule 
would  be  that  a  receiver  cannot  sue,  or  otherwise  exercise  his  func- 
tions, in  a  foreign  jurisdiction  whenever  such  acts,  if  sanctioned, 
would  interfere  with  the  policy  established  by  law  in  such  foreign 
jurisdiction.  There  seems  to  be  no  reason  why  this  should  not  be 
the  accepted  principle.  When  there  are  no  persons  interested  but  the 
litigants  in  a  foreign  jurisdiction,  and  it  becomes  expedient,  in  the 
progress  of  such  suit,  that  the  property  of  one  of  them,  wherever 
it  may  be  situated,  should  be  brought  in  and  subjected  to  such  pro- 
ceeding, I  can  think  of  no  objection  against  allowing  such  a  power 
to  be  exercised.  It  could  not  be  exercised  in  a  foreign  jurisdiction  to 
the  disadvantage  of  creditors  resident  there,  because  it  is  the  policy 
of  every  government  to  retain  in  its  own  hands  the  i)roperty  of  a 
debtor  until  all  domestic  claims  against  it  have  been  satisfied.  But 
beyond  this  precaution,  why  should  any  restraint  be  put  upon  the 
foreign  procedure?  The  question  thus  raised  has  nothing  to  do  with 
that  other  inquiry  that  is  frequently  discussed  in  the  books,  whether 
a  receiver  at  common  law  is  in  point  of  fact  clothed  with  the  power 
to  sue  in  a  foreign  jurisdiction  :  that  is  a  sultject  standing  by  itself, 
for   the  present  argument   relates  to  a  case  in  which  the  officer   is 


SECT,   IV.]  HURD    V.    CITY   OF   ELIZABETH.  725 

authorized,  so  far  as  such  power  can  be  given  by  the  tribunal  appoint- 
ing him,  to  gather  in  the  assets,  both  at  home  and  abroad.  Conceding 
that  the  officer  is  invested  with  this  fulness  of  authoritj',  it  would 
appear  to  be  in  harmony  with  those  legal  principles  by  which  the 
intercourse  of  foreign  States  is  regulated  for  every  government,  when 
its  tribunals  are  appealed  to,  to  render  every  assistance  in  its  power  in 
furtherance  of  the  execution  of  such  authority,  except  in  those  cases 
when,  by  so  doing,  its  own  policy  would  be  displaced  or  the  rights 
of  its  own  citizens  invaded  or  impaired.  After  completely  protecting 
its  own  citizens  and  laws,  the  dictates  of  international  comity  would 
seem  to  require  that  the  officer  of  the  foreign  tribunal  should  be 
acknowledged  and  aided.  The  appointment  of  a  receiver,  with  full 
powers  to  collect  the  property  of  a  litigant,  wherever  the  same  might 
be  found,  should  be  deemed  to  operate  as  an  assignment  of  such  prop- 
erty to  be  enforced  everywhere,  subject  to  the  exception  just  defined. 
Such  a  rule  is,  I  think,  both  practicable  and  just.  If  A.,  being  the 
only  creditor  of  B.,  should  sue  him  in  a  court  of  this  State,  and  the 
exigencies  of  justice  should  require  that  the  property  of  B.,  wherever 
the  same  might  be  situated,  should  be  put  under  the  control  of  the 
forum  in  which  the  proceedings  were  pending,  and  such  receiver 
should  be  appointed  and  should  be  legally  clothed  with  the  requisite 
authority  to  sue  for,  and  take  possession  of  such  property,  I  can 
find  nothing  in  the  rules  of  law  or  of  good  policy  that  should  permit 
tlie  debtors  of  B.  to  set  up  that  such  judgment  has  no  extraterritorial 
force.  To  sanction  such  a  plea  would  be  to  frustrate,  as  far  as  pos- 
sible, the  foreign  procedure,  simply  for  the  purpose  of  doing  so,  the 
single  result  being  that  a  court  would  be  baffled,  and  perhaps  pre- 
vented from  doing  justice.  Such  ought  not  to  be  the  legal  attitude 
of  governments  towards  each  other.  To  the  extent  to  which  this 
subject  has  been  involved,  it  has,  I  think,  been  properly  disposed  of 
in  the  adjudications  already  made  in  this  State.  Thus  in  Varnum  v. 
Camp,  1  Green,  326,  it  was  decided  that  an  instrument  efficient  at 
the  domicil  of  the  maker  to  transfer  his  property  could  not  dispose, 
in  a  manner  inconsistent  with  the  policy  of  our  laws,  of  his  movables 
situate  here.  In  this  case  the  duty  of  comity  was  admitted,  but  the 
decision  was  put  upon  the  ground  that  this  State  was  not  required, 
by  force  of  such  duty,  to  abandon  an  established  policy  of  its  own 
in  favor  of  a  different  policy  prevalent  in  another  jurisdiction.  Moore 
r.  Bonnell,  2  Vroom,  90,  was  decided  on  a  similar  principle,  and  it 
has  this  additional  feature,  that  while  it  in  a  general  way  rejects  the 
control  of  the  foreign  policy,  it  does  this  only  to  the  extent  rendered 
necessary  for  the  purpose  of  self-protection,  for,  beyond  this  limit, 
it  gives  effect  to  and  enforces  the  foreign  law.  And  the  same  disposi- 
tion to  co-operate,  as  far  as  practicable,  in  sustaining  an  alien  policy 
is  exhibited  in  the  case  of  Norraand's  Administrator  v.  Grognard, 
2  C.  E.  Green,  425.  The  foregoing  view  will  be  found  to  be  in  accord 
with  the  following  cases:  Hoyt  v.  Thompson,   1  Seld.  320;  Runk  v. 


726  HURD   V.    CITY   OF   ELIZABETH.  [CHAP.    XIV. 

St.  John,  29  Barb.  585;  Taylor  v.  Columbian  Insurance  Co.,  14 
Allen,  353. 

In  view  of  these  considerations  and  authorities  mj-  conclusion  is, 
that  the  legal  etfect  of  the  appointment  of  a  receiver  in  a  foreign 
jurisdiction  in  transferring  to  him  the  right  to  collect  the  property 
passing  under  his  control  by  virtue  of  such  office,  will  be  so  far  recog- 
nized by  the  courts  of  this  State  as  to  enable  such  officer  to  sustain 
a  suit  for  the  recover}-  of  such  property. 

But  it  is  also  said  that  the  declaration  is  substantial]}'  defective. 
It  is  certainly  informal  and  so  imperfect  that  upon  motion  it  would 
have  been  set  aside  ;  and  the  only  question  is,  whether,  by  force  of 
our  statute,  it  may  not  be  supported  as  against  a  general  demurrer. 
The  defects  of  this  pleading  are  very  marked.  For  example  :  the 
appointment  of  a  receiver  is  a  measure  incidental  to  a  suit,  and  yet 
the  pendency  of  such  a  suit  is  not  shown,  the  curt  averment  being 
that  the  plaintiff,  at  a  certain  date,  was  appointed  to  such  office  by 
the  Supreme  Court  of  the  State  of  New  York.  So  the  capacities  of 
the  receiver  and  his  right  to  sue  is  in  the  form  rather  of  a  deduction 
of  the  pleader  tliau  the  statement  of  a  fact.  I  can  find  nothing 
analogous  to  such  a  course  in  any  of  the  precedents  of  pleading. 
Still,  as  the  imperfections  of  this  declaration  could  readily  have  been 
objected  to  on  motion,  which  has  taken  the  place  of  a  special  demurrer, 
and  as  it  is  not  entirely  clear  whether  such  imperfections  are  matters 
of  substance  or  matters  of  form,  I  have  concluded  that  the  demurrer 
ought  not  to  be  sustained. 


SECT.  IV.]    CHICAGO,  ETC.   RAILWAY  V.   KEOKUK,  ETC.  PACKET  CO.     727 


CHICAGO,  MILWAUKEE  AND  ST.  PAUL  RAILWAY  v. 
KEOKUK  NORTHERN  LINE  PACKET  CO.,  Clubb, 
Interpleader. 

SuPRKME  Court  of  Illinois.     1883. 

[Reported  108  Illinois,  317.] 

This  was  an  attachment  suit,  brought  by  the  Chicago,  Milwaukee 
and  St.  Paul  Railwa}^  Company,  against  the  Keokuk  Northern  Line 
Packet  Compan}-,  in  the  Circuit  Court  of  Adams  County,  in  tiiis  State. 
The  writ  of  attachment  was,  on  the  21st  day  of  April,  1881,  levied 
upon  the  barge  "  C  W.  Duncan,"  lying  at  Quinc}-,  in  said  county,  as 
the  property  of  the  defendant.  Samuel  C.  Clubb,  under  the  provision 
of  section  29  of  our  Attachment  Act,  "  that  an}-  person  other  than  the 
defendant  claiming  the  property  attached  may  interplead,"  etc.,  inter- 
pleaded in  the  case,  claiming  the  property  so  attached,  under  an  ap- 
pointment as  receiver  of  the  propert}'  and  effects  of  said  packet 
compan}-,  by  the  Circuit  Court  of  St.  Louis,  in  the  State  of  Missouri,  in 
a  certain  cause  in  said  court  wherein  said  packet  company  was  defend- 
ant. There  was  judgment  in  favor  of  the  interpleader,  Clubb,  which, 
on  appeal,  was  affirmed  b}'  the  Appellate  Court  for  the  Third  District, 
and  the  railway  company  appealed  to  this  court. 

The  plaintiff  in  the  attachment  suit  had  first  filed  a  replication  to  the 
pleas  of  the  interpleader,  traversing  the  same,  but  afterward,  on  its 
motion  granted  by  the  court,  it  withdrew  the  replication,  as  having 
been  filed  b}'  mistake,  and  then  moved  the  court  to  file  its  plea  in 
abatement,  which  had  been  intended  to  be  filed  instead  of  the  replica- 
tion, denying  the  right  to  interplead  as  receiver  under  the  appointment 
of  a  foreign  court,  which  motion  the  court  overruled,  whereupon  said 
plaintitr  company  filed  the  plea  in  abatement,  which  plea  the  court,  on 
motion  of  said  Clubb,  ordered  to  be  stricken  from  the  files.  The 
plaintiff  company,  then  refiled  its  said  replication,  upon  which  issue 
was  joined  and  the  trial  had.  The  interpleader's  first  plea  alleges  the 
barge  was  his  own  property  at  the  time  of  the  attachment  of  it ;  the 
second,  that  it  was  his  property  as  receiver;  the  third,  that  at  such 
time  it  was  in  his  possession  as  receiver. 

The  facts  of  the  case  shown  by  the  evidence  are,  that  at  the  October 
term,  1880,  of  the  Circuit  Court  of  the  city  of  St.  Louis,  in  the  State  of 
Missouri,  Samuel  C.  Clubb  was  duly  appointed  receiver  of  the  Keokuk 
Northern  Line  Packet  Company,  an  insolvent  corporation  of  that  State, 
with  power  and  authority  to  take  possession  of  all  the  business  and 
property  of  the  corporation,  and  to  manage  the  affairs  thereof,  under 
the  orders  of  the  court,  the  receiver  giving  bond  in  the  sum  of  $200,000 
for  the  faithful  discharge  of  his  duties.  At  the  time  of  such  appoint- 
ment the  barge  "  G.  W.  Duncan,"  in  question,  was  lying  at  the  land- 


728  CHICAGO,  ETC.  RAILWAY  V.  KEOKUK,  ETC.  PACKET  CO.   [CHAP    XIV. 

ing  at  St.  Louis,  within  the  State  of  Missouri,  and  within  the  jurisdiction 
of  said  court.  The  receiver  immediately  took  possession  of  the  barge, 
and  afterward,  on  the  6th  day  of  November,  1880,  he  chartered  the 
barge  to  the  steamer  "E.  W.  Cole,"  for  a  trip  up  the  Mississippi 
River  and  return.  The  barge  was  taken,  under  the  charter,  up  the 
river  as  far  as  Quincy,  IlUnois,  where  it  was  detained  by  tlie  ice,  and 
remained  until  the  levy  of  the  writ  of  attacliraent  in  this  case  upon  it 
on  the  21st  day  of  April,  1881.  At  the  request  of  tlie  captain  of  the 
steamer  "  E.  W.  Cole,"  the  receiver  released  him  from  the  charter,  and 
took  possession  of  the  barge  at  Quinc}',  and  ever  since,  until  the  levy 
of  the  attachment,  retained  such  possession,  having  a  watchman  over 
and  guarding  the  barge  against  danger.  The  receiver  made  an  effort 
to  have  the  barge  removed  to  St.  Louis  as  soon  as  the  river  was  clear 
of  ice,  having  made  a  contract  with  a  steamboat  line  for  the  purpose, 
but  did  not  succeed  in  having  the  removal  made  before  the  attachment. 
The  court  which  appointed  the  receiver,  at  its  April  term,  1881,  made 
an  order  authorizing  the  receiver  to  intervene  in  tlie  attachment  suit, 
and  take  the  necessary'  steps  to  secure  possession  of  the  barge. ^ 

Sheldon,  C.  J.  "We  will  consider  the  case  as  properlj'  presenting 
by  the  pleadings  the  question  of  the  right  to  interplead  in  the  suit  in 
the  capacity  of  receiver. 

The  general  doctrine  that  the  powers  of  a  receiver  are  coextensive 
onl}-  with  the  jurisdiction  of  the  court  making  the  appointment,  and 
particularly  that  a  foreign  receiver  should  not  be  permitted,  as  against 
the  claims  of  creditors  resident  in  another  State,  to  remove  from  such 
State  the  assets  of  the  debtor,  it  being  the  polic}*  of  ever}*  government 
to  retain  in  its  own  hands  the  property  of  a  debtor  until  all  domestic 
claims  against  it  have  been  satisfied,  we  fullv  concede  ;  and  were  this 
the  case  of  property*  situate  in  this  State,  never  having  been  within 
the  jurisdiction  of  the  court  that  appointed  the  receiver,  and  never 
having  been  in  the  possession  of  the  receiver,  it  would  be  covered  by 
the  above  principles,  which  would  be  decisive  against  the  claim  of  the 
appellee.  But  the  facts  that  the  property  at  the  time  of  the  appoint- 
ment of  the  receiver  was  within  the  jurisdiction  of  the  court  making 
the  appointment,  and  was  there  taken  into  the  actual  possession  of  the 
receiver,  and  continued  in  his  possession  until  it  was  attached,  take 
the  case,  as  we  conceive,  out  of  the  range  of  the  foregoing  principles. 
We  are  of  o[)inion  that  by  the  receiver's  taking  possession  of  the  barge 
in  question  within  the  jurisdiction  of  the  court  that  appointed  him,  he 
became  vested  with  a  special  propertj-  in  the  barge,  like  that  which  a 
sheriff  acquires  by  the  seizure  of  goods  in  execution,  and  that  he  was 
entitled  to  protect  this  special  property  while  it  contimud,  l)y  action, 
in  like  manner  as  if  he  had  been  the  absolute  owner.  Having  taken 
the  property  in  his  possession,  he  was  responsible  for  it  to  the  court 
that  appointed  him,  and  had  given  a  bond  in  a  large  sum  to  cover  his 
responsibility  as  receiver,  and  to  meet  such  liability  he  might  maintain 
^  Arguments  of  counsel  are  omitted.  —  Ed. 


SECT.  IV.]     CHICAGO,  ETC.  RAILWAY  V.   KEOKUK,  ETC.  PACKET  CO.     729 

any  appropriate  proceeding  to  regain  possession  of  tlie  barge  which 
bad  been  taken  from  him.  Boyle  i-.  Townes,  9  Leigh,  158;  Singerly 
V.  Fox,  75  Pa.  114.  It  is  well  settled  that  a  sheriff  does,  by  the  seiz- 
ure of  goods  in  execution,  acquire  a  special  property  in  them,  and  that 
he  may  maintain  trespass,  trover,  or  replevin  for  them. 

It  is  claimed  that  there  was  here  an  abandonment  of  the  barge  by 
leasing  it  and  suffering  it  to  be  taken  out  of  the  State,  —  that  the  pur- 
pose in  so  doing  was  an  unlawful  one,  and  a  gross  violation  of  ofl3ciaI 
duty.  We  do  not  so  view  it.  The  receiver  was,  by  his  appointment, 
authorized  to  manage  the  affairs  of  the  corporation  under  the  orders  of 
the  court.  The  business  of  the  corporation  was  running  boats  on  the 
Mississippi  River,  and  cliartering  tlie  barge  for  a  trip  up  that  river  was 
but  continuing  the  employ  of  the  barge  in  the  business  of  the  corpora- 
tion, and  therefrom  making  an  increase  of  the  assets  to  be  distributed 
among  the  creditors.  Brownell  v.  Manchester,  1  Pick.  233,  decides 
that  a  sheriff  in  the  State  of  ^Massachusetts,  who  had  attached  property 
in  that  State,  did  not  lose  his  special  property  by  removing  the  attached 
property  into  the  State  of  Rhode  Island  for  a  lawful  purpose.  Dick  v. 
Bailey  et  al.  2  La.  Ann.  974,  holds  otherwise  in  respect  to  propert}' 
attached  in  Mississippi,  and  sent  by  the  sheriff  into  Louisiana  for  an 
illegal  purpose.  It  is  lai(j  down  in  Drake  on  Attachment  (5th  ed.), 
§  292,  that  the  mere  fact  of  removal  b}'  an  officer  of  attached  prop- 
erty beyond  his  bailiwick  into  a  foreign  jurisdiction,  without  regard  to 
the  circumstances  attending  it,  will  not  dissolve  the  attachment ;  that 
if  the  purpose  was  lawful,  and  the  possession  continued,  the  attach- 
ment would  not  be  dissolved  ;  but  if  the  purpose  was  unlawful,  though 
the  officer's  possession  remained,  or  if  lawful  and  he  lost  his  possession, 
his  special  property  in  the  goods  would  be  divested,  —  citing  the  two 
cases  above  named.  We  do  not  consider  that  there  was  any  unlawful 
purpose  here  in  the  chartering  and  employing  of  the  barge,  as  was 
done. 

It  is  insisted  the  possession  of  the  barge  was  lost.  There  was  cer- 
tainly evidence  tending  to  show  possession  by  the  receiver  up  to  the 
time  of  the  attachment,  and  in  support  of  the  judgment  of  the  Appel- 
late Court  we  must  presume  that  it  found  the  existence  of  all  the  facts 
necessar}'  to  sustain  the  judgment,  where  there  was  evidence  tending 
to  show  their  existence,  and  that  court's  finding  of  fact  is  conclusive 
upon  us.  By  taking  the  barge  into  his  possession  within  the  jurisdic- 
tion of  the  court  that  appointed  him,  a  special  property  in  the  barge 
became  vested  in  the  receiver,  and  it  is  the  established  rule  that  where 
a  legal  title  to  personal  property  has  once  passed  and  become  vested 
in  accordance  with  the  law  of  the  State  where  it  is  situated,  the  valid- 
it}-  of  such  title  will  be  recognized  everywhere.  Caniwell  v.  Sewell, 
5  Hurl.  &  N.  728  ;  Clark  v.  Connecticut  Peat  Co.,  35  Conn.  303  ;  Tay- 
lor v.  Boardman,  25  Vt.  581  ;  Crapo  v.  Kelly,  16  Wall.  610;  Waters 
V.  Barton,  1  Cold.  (Tenn.)  450. 

Under  this  rule  we  hold  that  where  a  receiver  has  once  obtained 


730   CHICAGO,  ETC.  RAILWAY  V.  KEOKUK,  ETC.  PACKET  CO.  [CHAP.  XTV, 

rightful  possession  of  personal  properU*  situated  witliin  the  jurisdiction 
of  his  appointment,  which  he  was  appointed  to  take  charge  of,  he 
will  not  be  deprived  of  its  possession,  though  he  take  it,  in  the  per- 
formance of  his  dut}',  into  a  foreign  jurisdiction  ;  that  while  there 
it  cannot  be  taken  from  his  possession  by  creditors  of  the  insolvent 
debtor  who  reside  within  that  jurisdiction.  Where  a  receiver  of  an 
insolvent  manufacturing  corporation,  appointed  b}-  a  court  in  New 
Jersey,  took  possession  of  its  assets,  and  for  the  purpose  of  com- 
pleting a  bridge  vvhich  it  had  contracted  to  build  in  Connecticut,  pur- 
chased iron  with  the  funds  of  the  estate  and  sent  it  to  that  State,  it 
was  decided  that  the  iron  was  not  open  to  attachment  in  Connecti- 
cut by  a  creditor  residing  there.  Pond  v.  Cooke,  45  Conn.  126. 
And  where  C.  was  appointed,  b}'  a  court  in  Arkansas,  receiver  of 
property  of  T.,  a  defendant  in  a  suit,  and  ordered  to  ship  it  to  Mem- 
phis, for  sale,  and  to  hold  the  proceeds  subject  to  the  order  of  the 
court,  and  did  so  ship  it  to  Memphis,  where  it  was  attached  by  cred- 
itors of  T.,  it  was  held  that  C.  could  maintain  an  action  of  replevin 
for  the  property  in  Tennessee.  Cagill  v.  Wooldridge,  8  Baxter,  580. 
Kilmer  v.  Hobart,  58  How.  Pr.  452,  decides  that  receivers  appointed 
jn  another  State,  and  operating  a  railway  as  such,  but  having  property 
in  their  hands  as  receivers  in  New  York,  cannot  there  be  sued,  — 
that  an  attachment  issued  in  such  suit  will  be  vacated. 

This  is  not  the  case  of  the  officer  of  a  foreign  court  seeking,  as 
against  the  claims  of  creditors  resident  here,  to  remove  from  this 
State  assets  of  tlie  debtor  situate  here  at  the  time  of  the  officer's 
appointment,  and  ever  since,  and  of  which  he  had  had  no  previous 
possession.  It  is  to  such  a  case  as  that,  as  we  understand,  that  the 
authorities  cited  by  appellant's  counsel  appl}',  and  not  to  a  case  like  the 
present,  where  the  property  was,  at  the  time  of  the  appointment  of 
the  foreign  receiver,  within  the  jurisdiction  of  the  appointing  court, 
and  there  taken  into  the  receiver's  possession,  and  subsequently  suf- 
fered b}-  him  to  be  brought  into  this  State  in  the  performance  of  his 
duty,  and  his  possession  here  wrongfully  invaded,  and  he  seeking  but 
redress  for  such  invasion. 

The  judgment  of  the  Appellate  Court  must  be  affn-med. 

Judgment  affirmed} 

1  Ace.  Robertson  v.  Stead,  135  Mo.  13.5,  36  S.  W.  610  ;  Osgood  v.  Maguire,  61  N.  Y. 
524;  Cagill  v.  Wooldridge,  8  Raxt.  580;  16  Clunet,  725  (Denmark,  14  Feb.  '87). 
Contra,  Humphreys  v.  Hopkins,  81  Cal.  551,  22  Pac.  892.  Where  a  voluntary  assign- 
ment is  made  by  the  debtor  to  the  reeeiver,  it  will  be  treated  like  any  case  of  voluntary 
assignment,  and  the  re(;eiver's  rights  recognized.  Graydon  v.  Church,  7  Mich.  36  ; 
Parker  v.  Stoughton  Mill  Co.,  91  Wis.  174,  64  N.  W.  751. 

A  fortiori,  when  the  light  was  never  in  the  debtor,  but  accrued  to  the  receiver,  he 
may  sue  in  any  jurisdiction  upon  his  individual  right.  Thus  he  may  sue  for  property 
bought  by  him  :  Pond  v.  Cooke,  45  Conn.  126  ;  upon  a  judgment  obtained  by  him  : 
Wilkinson  v.  Culver,  25  Fed.  639  ;  to  foreclose  a  mortgage  made  to  him  :  Inglehart  v. 
Pierce,  36  HI.  133;  and  to  enforce  the  terms  of  a  contract,  made  with  the  corpo- 
ration  of  which  he  is  the  receiver,  but  performed  on  his  side  by  liimself  under  au  ar- 


SECT.  I.J  SAWYER  V.  MAINE  FIRE  AND  MARINE  INSURANCE  CO.      731 


CHAPTER   XV. 

JUDGMENTS. 


SECTION   I. 

THE    NATURE    OF    A    JUDGMENT- 
SAWYER   V.   MAINE   FIRE   AND    MARINE   INSURANCE   CO. 
Supreme  Judicial  Court  of  Massachusetts.     1815. 
[Reported  12  Massachusetts,  291.] 

This  was  an  action  of  the  case  upon  a  policy  of  insurance,  dated 
March  20th,  1812,  for  $6,000  upon  the  brig  "  Lydia,"  vahied  at  S7,000, 
at  and  from  Portlantl  to  one  or  more  ports  in  the  West  Indies,  ixnc}  at_, 
and  from  thence  t£Lii£iLIiQi:Ljaf.--diat;harge  in  the  United  States,  against 
capture  and  coademnation  DnJy.  The  plaintiffs  declared  for  a  total 
loss  by  capture,  in  the  first  count,  by  a  vessel  unknown,  belonging  to 
citizens  of  Hispaniola ;  and  in  the  second  count  by  pirates,  rovers, 
&c.,  on  the  19th  of  April,  1812. 

On  the  trial  before  Putnam,  J.,  at  the  sittings  here  by  adjournment 
of  the  last  October  term,  it  appeared  that  proof  of  the  loss  was  made, 
and  an  abandonment  offered,  on  the  14th  of  May,  1812.  The  policy 
and  interest  were  admitted. 

The  plaintiffs  proved  that,  at  the  time  of  making  the  insurance,  it 
was  stated  to  the  defendants  that  the  vessel  was  bound  to  Port  au 
Prince.  They  also  read  the  deposition  of  Elisha  Sawyer  (a  copy  of 
which  came  up  in  the' case),  stating  that  he  was  master  of  the  said  ves- 
sel on  the  voyage  insured :  that  on  arriving  in  sight  of  Port  au  Prince 
he  was  hailed  bv  an  armed  brig  belonging  to  the  king  of  Hayti,  and 
ordered  to  come  on  board.  The  captain  then  informed  the  witness 
that  he  was  fighting  against  Petion,  who  had  possession  of  Port  au 
Prince,  that  the  king  of  Hayti  wanted  his  provisions,  and  that  if  he, 
the  witness,  would  go  to  St.  Mark's,  he  should  have  a  good  price  for 
his  cargo  ;  but  that  if  he  refused  he  should  send  him.  On  the  witness 
refusing,  a  prize  master  and  five  men  were  put  on  board  the  brig,  and 
an  arm^e'd  schooner  accompanied  her  to  St.  Mark's.  On  his  arrival 
there  he  was  ordered  on  shore,  and  was  carried  before  the  prince 
Gonaive,  who  said  he  wanted  the  cargo,  and  would  pay  the  witness 
for  it     The  prince  then  ordered  the  sails  taken  from  the  brig  and 

rangement  with  the  other  partv  :  Cook.  v.  Orange,  48  Conn.  401  ;  and  still  more  clearly 
to  enforce  a  contract  made  as  well  as  ,.erforn,ed  by  himself:  Merchants'  Nat.  Bank  v. 
Pennsylvania  Steel  Co.,  57  N.  J.  L.  336,  30  Atl.  545.  — Ed. 


732     SAWYEK  V.  MAINE  FIKE  AND  MARINE  INSURANCE  CO.      [CHAP.  X\ 

brought  on  shore,  and  twelve  men  were  placed  on  board.  The  witness 
then  went  oiTboarHThe^vessel,  and  on  tTieThTrd"73a3'  after  was,  with  all 
his  crew,  ordered  on  shore  ;  and  on  being  carried  before  the  minister  of 
justice  so  called,  he  read  to  them  a  condemnation  of  the  vessel  and 
cargo.  The  next  day  the  vessel  was  sold  and  the  cargo  taken  out  and 
put  into  the  king's  warehouse.  The  vessel  was  purchased  by  Messrs. 
Dodge  and  Myers,  of  Philadelphia,  for  the  master,  at  the  price  of 
$4,000,  and  he  went  in  her  to  Philadelphia,  where  he  sold  her.  He 
had  never  heard  of  the  blockade  of  Port  an  Prince  before  his  capture. 
The  king  of  Hayti  and  all  his  officers  were  black,  except  his  majestj-'s 
interpreter,  who  was  a  mulatto.  The  principal  facts  in  the  master's 
deposition  were  confirmed  by  the  testimony  of  the  mate  of  the  vessel. 
The  defendants  produced  a  copy  of  the  condemnation,  which  came  up 
in  the  case,  and  contended  tliat  it  thereb\'  appeared  that  the  brig  was 
condemned  for  a  violation  of  the  blockade  of  Port  au  Prince  by  the 
emperor  of  Hayti ;  and  that  the  decree  was  to  be  considered  as  conclu- 
sive evidence  of  the  facts  thereby  decided. 

There  was  no  evidence  that  Port  au  Prince  was  in  fact  blockaded  at 
the  time  of  the  capture,  other  than_what  arises  from  the  said  decree  of 
condemnation.  Nor  was  there  any  evidence  that  the  brig  was  notified 
of  any  blockade,  or  warned  not  to  enter  for  that  cause  prior  to  the 
capture.  The  collector  of  the  customs  for  the  district  of  Portland  tes- 
tified that,  since  the  expiration  of  the  law  of  the  United  States  pro- 
hibiting intercourse  with  St.  Domingo,  many  clearances  had  been  made 
from  the  United  States  for  Port  au  Prince,  and  many  clearances  from 
Havti  to  the  United  States.  It  was  in  evidence  that  Christophe, 
or  Henry,  was  the  sovereign  de  facto  of  Cape  Francois  and  of  that 
part  of  the  island  ;  and  that  Petion  was  the  sovereign  de  facto  of  Port 
au  Prince  ;  that  Petion  and  Christophe  are  at  war  with  each  otiiei%_each 
declaring  the  other  to  be  in  rebellion  against  France  ;  l)ut_eaiilL_ciaiin- 
iljo;  lo  have  autliority  in  his  own  dorniimiii :  tliat  they  have  their  cus- 
tom houses  and  custom  house  officers :  and  shijjs  of  many  nations, 
En^hsh^.S4iaau*l^_A.inericani_&c.  trade  there,  and-bu&iness  is  regularly 
transacted  ;  tliat  the  United  States  have  had  a  consul  at  Cape  Fran- 
qoTsT^Ince  the  government  has  been  in  rebellion  against  France :  par- 
ticularh'  that  Col.  Lear  was  consul  there  when  Toussaint  was  regent: 
that  protests,  decrees,  and  other  proceedings  of  the  admiralty  courts 
from  Cape  Francois  are  frequently  seen  in  the  United  States :  and  that 
a  proclamation  of  the  blockade  of  Port  au  Prince  by  Christophe,  or 
king  Henry,  was  published  here  in  June,  1812.' 

The  judge  instructed  the  jur}'  that  the  decree  must  be  considered  as 
conclusive  evidence  that  the  vessel  was  condemned  for  violation  of 
blockade. 

1'ju' ji^iry  (^('cordingUi-xcturned^a  verdict  for  the  defendants,— wlikL 
was  taken  subject  to  the  opinion  of  the_court  in  the  premises.     If  that 

'  Part  of  the  statement  of  facts  and  part  of  the  opinion,  involving  the  claim  of 
partial  loss,  are  omitted.  —  Ed. 


SECT.  I.]  PAINE  V.    SCHENECTADY   INSURANCE  CO.  733 

0|3inion^hould_be,  thatjbbe  said  decree  does  decide  and  is  conclusive 
evidence^of^  violation  of  blockade  by  the  vessel  the  verdict  was  to 
stand :  otherwise  the  defendantsjvYere^Jo  bfi--de_fault_edj.  and  judgpaent 
was  to  be  rendered  for  a  total  or  partial  loss,  in  such  sum  as,  upon  the 
facts  before  stated,  the  court  should  determine  the  plaintiffs  ought  to 
recover. 

Parker,  C.  J.  The  decree  offered  in  this  case,  as  conclusive  evi- 
dence of  a  violation  of  blockade  by  the  vessel  insured,  cannot  be  held 
so  to  operate.  Indeed  it  may  be  doubtful  whether  it  ought  to  have 
been  admitted  at  all. 

Waiving  all  question  as  to  the  character  of  the  government,  under 
which  the  seizure  of  the  vessel  and  the  decree  of  forfeiture  took  place, 
it  certainly  is  essentially  defective  when  attempted  to  be  applied  to  this 
contract  of  insurance. 

For  it  does  not  appear  that  any  libel  was  filed,  any  monition  issued, 
an}'  hearing  had,  or  that  an}'  of  those  formalities  had  taken  place, 
which  are  necessary  to  give  a  conclusive  operatiou  to  decrees  of  foreign 
courts.  For  aught  that  appears  from  the  cop}'  of  the  proceedings  be- 
fore us,  the  forfeiture  was  decreed  by  mere  arbitrary  power,  without 
any  trial ;  and  that  some  of  the  forms  of  justice,  used  in  civilized 
countries,  had  been  assumed,  without  any  regard  to  the  substantial 
requisites  of  a  judicial  inquiry. 

Considering  the  decree  then  as  not  conclusive,  the  facts,  which  it 
purports  to  establish,  are  abundantly  disproved  by  the  other  testimony 
in  the  case :  so  that  the  seizure  of  the  vessel  must  be  taken  to  have 
been  an  act  of  unjustifiable  violence,  for  which  the  underwriters  are 
undoubtedly  answerable.  .  .  .  Defendants  defaulted. 


PAINE  V.    SCHENECTADY  INSURANCE  CO. 

Supreme  Court  of  Rhode  Island.     1877. 
[Reported  11  Rhode  Ishnid,  411.] 

DuRFEE,  C.  J.  This  is  an  action  of  assumpsit  to  recover  damages 
for  breach  of  contract.  It  was  commenced  in  the  court  of  Common 
Pleas,  August  27,  1870.  The  plaintiff  recovered  judgment  in  that 
court  at  the  December  Term,  1875.  The  defendant  appealed  to  this 
court  at  the  March  Term,  1876.  May  13,  1876,  the  defendant  filed  a 
plea  puis  darrein  continuance^  setting  forth  that  on  the  8th  May,  1876, 
George  T.  Hanford,  who  had  been  duly  appointed  receiver  of  the  goods 
and  effects  of  the  defendant,  had  impleaded  the  plaintiff  in  the  Supreme 
Court,  in  the  State  of  New  York,  and  recovered  judgment  against  him 
for  §1,878.11,  and  costs,  "  which  still  remains  in  full  force  and  effect, 
not  in  any  wise  reversed,  annulled,  discharged,  or  satisfied."  The 
plea  sets  forth  the  proceeding  in  the  New  York  suit,  showing  that  the 
plaintiff  therein  pleaded  in  set-off  the  matters  involved  in  this  case,  and 


734  PAINE   V.   SCHENECTADY   INSURANCE    CO.  [CHAP.  XV. 

avers  that  the  cause  of  action  and  the  issue  raised  by  the  pleadings  are 
the  same  in  both  suits,  and  that  the  parties  are  identicah  To  this  plea 
the  plaintiff  demurs,  assigning  four  causes  of  demurrer. 

The  first  cause  is,  that  the  suit  set  forth  in  the  plea  is  not  alleged^ 
h^ve  hwn  instituted  before  the  commencement  of  the  present  suit 
And  in  his  brief,  the  counsel  for  the  plaintiff  contends  that  there  is  no 
precedent  for  such  a  plea  where  the  judgment  was  recovered  by  the  de- 
fendant, or  was  recovered  in  a  suit  commenced  subsequently  to  the 
suit  in  which  it  was  pleaded. 

We  do  not  see  that  it  makes  any  difl'erence  which  party  has  re- 
covered judgment.  The  true  question  is,  whether  the  controversy  has 
been  determined  by  a  competent  tribunal  having  jurisdiction  ;  for,  if  it_ 
has  been,  the  defendant  has  the  right  to  insist.that  it  shall  not  be  further 
prosecuted,  unless  for  some  teclniical  reason  lie  cannot  have  the  benefit 
of  the  esloppeT  The  plaintiff  says  he  cannot  have  the  benefit  of  the 
estoppel  because  the  suit  in  this  State  was  first  commenced.  Is  this 
so?  We  think  not.  The  defendant  had  the  right  to  sue  the  plaintiff 
in  New  York,  notwithstanding  the  plaintiff  had  sued  him  in  Rhode 
Island.  The  plaintiff,  in  defending  against  the  New  York  suit,  put 
in  issue  the  same  controversy  which  was  in  issue  in  the  Rhode  Island 
suit,  and  it  was  decided  against  him.  Why  should  he  not  be  con- 
cluded, and,  if  concluded,  why  should  not  the  defendant  have  the 
benefit  of  the  conclusion  by  plea  2^^^'^^  darrein  ?  If  the  judgment  in 
New  York  had  been  recovered  before  the  suit  in  Rhode  Island,  the  de- 
fendant would  certainly  have  been  entitled  to  plead  it.  Indeed,  such 
a  judgment  would  be  pleadable  in  bar  if  recovered  in  a  foreign  country, 
and  a  fortiori,  under  the  Federal  Constitution  and  law,  when  recovered 
in  a  sister  State.  Ricardo  v.  Garcias,  12  CI.  &  Fin.  368  ;  Bissell  v. 
Brigg,  9  Mass.  462  ;  Mills  y.  Duryee,  7  Cranch,  481  ;  2  Am.  Lead.  Cas. 
(5th  ed.)  611  et  seq.,  where  this  subject  is  discussed,  and  the  cases 
fully  cited. 

The  two  cases  of  Baxley  v.  Linah,  16  Pa.  St.  241,  and  North  Bank 
V.  Brown,  50  Me.  214,  are  closely  in  point.  In  Baxley  v.  Linah,  16  Pa. 
St.  241,  an  action  was  commenced  in  Maryland,  December  30,  1846, 
and  in  Pennsylvania,  for  the  same  cause,  June  2,  1847.  The  defend- 
ant pleaded  the  prior  pendency  of  the  Maryland  action  in  abatement 
to  the  Pennsylvania  action,  and  the  plea  was  overruled,  the  plea  of 
prior  pendency  being  available  only  when  both  actions  are  pending  in 
the  same  State.  Bowne  et  al.  v.  Joy,  9  Johns.  Rep.  221  ;  Walsh  et  al. 
V.  Durkin,  12  Johns.  Rep.  99.  Subsequently,  January  31,  1848,  the 
plaintiff  recovered  judgment  against  the  defendant  in  the  Maryland 
action;  and  Decembers,  1849,  the  defendant  pleaded  it  in  bar  puis 
darrein  continuance.  The  plaintiff  denuirred.  The  court,  however, 
sustained  the  plea. 

The  only  material  difference  between  that  case  and  the  case  at  bar 
is,  that  there  tlie  judgment  was  recovered  first  in  the  earlier  case,  here 
in  the  later.     But  the  judgment,  whenever  recovered,  is  still  a  judg- 


SECT.  I.]  PAINE   V.    SCHENECTADY    INSURANCE    CO.  735 

ment ;  and  why,  then,  is  it  not  pleadable  as  such?  In  North  Bank 
V.  Brown,  50  Me.  214,  the  plaintiff  commenced  suit  against  the  defend- 
ant in  Maine,  January  11,  1858  ;  and  in  New  York  for  the  same  cause, 
January  21,  1858.  Judgment  was  first  obtained  in  th_e  J^jQaLj^ork 
suit,  and  it  was  held  to  be  a  ggcd  defence  to  the  suit  in  Maine. 
/  Here  the  judgment  does  not  appear  to  have  been  specially  pleaded  ; 
but  if  it  had  been  specially  pleaded,  we  see  no  reason  why  the  de- 
cision would  not  have  been  the  same.  We  think  the  first  cause  of  de- 
murrer is  not  sufficient.^ 

The  second  cause  is,  that  it  does  not  appear  that  the  New  York  suit 
was  prosecuted  by  or  for  the  defendant  corporation,  or  by  its  authority, 
or  for  its  benefit. 

The  plea  sets  forth  that  the  New  York  suit  was  prosecuted  by  George 
T.  Hanford,  as  receiver  of  the  goods  and  effects  of  the  defendant,  and 
avers  that  the  parties  are  identical ;  meaning,  doubtless,  that  they  are 
in  legal  eflfect  the  same.  We  infer  from  this  that,  under  the  laws  of 
New  York,  the  receiver,  for  the  purposes  of  his  appointment,  is  virtu- 
ally the  corporation,  and  that  therefore  a  suit  by  him  as  receiver  is, 
in  legal  effect,  a  suit  by  the  corporation.  We  the  more  readily  infer 
that  the  law  is  so  in  New  York,  because  it  is  so  in  this  State.  We 
think,  when  the  judgment  of  a  sister  State  is  pleaded,  we  ought  not  to 
be  too  strict  or  technical ;  but  that  we  ought  to  administer  the  law  in  a 
spirit  of  liberal  comity,  and  to  allow  the  plea  every  fair  intendment,  so 
as  not  to  defeat  the  consfltutionaT  privilege  of  the  judgmeht:_'Tf  Ihi? 
suit  werepending  iu^ewTdiTTsuch  a  judgment  would  doubtless  be  a 
bar  to  it.  We  think,  therefore,  that  the  second  cause  of  demurrer  can- 
not be  sustained. 

The  third  cause  of  demurrer  is  substantial!}'  the  same  as  the  second, 
and  is  for  the  same  reason  overruled. 

The  fourth  cause  is,  that  the  cause  of  action  in  the  two  suits  does  not 
appear  to  be  identical.  The  plea  avers  that  it  is  identical,  and  we  do 
not  find,  from  an  examination  of  the  judgment  as  pleaded,  any  suflS- 
cient  reason  to  think  it  is  not  so.  See  Ricardo  v.  Garcias,  12  CI. 
&  Fin.  368,  401. 

TIi£_4iLaiiitiff-  states  in-  his  brtef^  4ba^  an- appeal- -has- JDeen-takea  1mm 
the  judgment  rendered  in  New  York.  The  plea,  however,  does  not 
^how  this.  Primd  facie  the  judgment  as  pleaded  appears  to  be  final 
and  conclusive.  Upon  demurrer,  we  can  only  know  what  the  plea  dis- 
closes. If  the  plaintiff  desires  us  to  decide  upon  the  eflfect  of  the 
appeal,  he  should  bring  the  fact  of  the  appeal  before  us  by  proper 
pleading  and  proof. 

Upon    the  question  whether  the  court  can  take  cognizance  of  the 

1  Ace.  Cox  V.  Mitchell,  7  C.  B.  n.  s.  55  ;  Memphis  &  C.  R.  R.  v.  Grayson,  88  Ala. 
572,  7  So.  122;  Seevers  v.  Clement,  28  Md.  426;  Whitintj  v.  Burger,  78  Me.  287; 
Laney.  Hanson,  25  Can.  69.  See  the  Santissima  Trinidad,  7  Wheat.  283,  355  ;  Lyman 
V.  Brown,  2  Curt.  559  ;  Thorpe  v.  Sampson,  84  Fed.  63.—  Ed. 


736  PAINE    V.    SCHENECTADY    INSURANCE    CO.  [CIIAP.  XV. 

New  York  law   as   to   the   effect   of  an  appeal,  unless  pleaded   and 
proved,  see  2  Am.  Lead.  Cas.  (5th  ed.)  648  et  seq. 

Demurrer  overruled. 

After  the  foregoing  opinion,  the  plaintiff  replied  to  the  plea  puis 
darrein  continuance :  — 

1.  That  the  judgment  of  the  Supreme  Court  of  New  York  set  forth 
in  the  plea  had  been  appealed  from,  and  that  the  suit  wherein  judgment 
had  been  given  was  consequently  pending  in  the  Supreme  Court  of 
New  York. 

2.  That  the  receiver  Hanford  acted  without  authoritv,  and  did  not 
institute  the  New  York  suit  in  behalf  of  the  defendant  corporation  but 
for  himself 

3.  That  the  cause  of  action  in  the  New  York  suit  was  not  that  in 
the  present  case. 

All  these  replications  concluded  to  the  countrj-.  The  defendant  de- 
murred to  them  all. 

DuRFEE,  C.  J.  This  is  an  action  of  assumpsit  to  which  the  de- 
fendant pleads  in  bar  a  former  judgment  recovered  in  the  Supreme 
Court  of  the  State  of  New  York.  The  plaintiff  replies  tliat  the  judg- 
ment has  been  appealed  from  by  him,  and  the  suit  is  still  pending  in 
the  court.     The  defendant  demurs  to  the  replication. 

The  defendant  contends  that  by  the  law  of  New  York  an  appeal  does 
not  vacate  the  judgment  appealed  from,  but  leaves  it,  until  annulled  or 
reversed,  conclusive  upon  tlie  parties. 

Two  questions  arise  upon  the  demurrers  :  — 

1.  The  first  question  is,  whether  we  can  take  judicial  cognizance  of 
the  law  of  New  York,  or  must  presume  it  to  be  the  same  as  ours  until  it 
is  shown  by  averment  and  proof  to  be  different.  The  decisions  upon  this 
point  are  conflicting,  but  we  think  the  decision  of  the  Supreme  Court  of 
Pennsylvania,  in  The  State  of  Ohio  v.  Hinchman,  27  Pa.  St.  479,  rests 
upon  the  better  reason.  The  court  there  held  that,  when  the  judgment 
impleaded  is  the  judgment  of  a  sister  State,  the  court  will  notice  ex 
officio  the  law  of  the  State  in  which  it  was  rendered.  The  reason  given 
for  this  is,  that,  in  such  a  case,  the  court  acts  under  the  Constitution 
and  laws  of  the  United  States,  which  require  that  the  judgment  shall 
have  in  every  State  the  same  faith  and  credit  which  it  has  in  the  State 
•where  it  was  originally  rendered.  In  such  a  case,  it  was  said,  the  de- 
cision of  the  State  court  is  re('xaminnl)le  in  the  Supreme  Court  of  the 
United  States,  which  will,  without  averment  or  proof,  take  cognizance 
of  the  law  of  the  State  in  which  the  record  originates.  "  It  would  be 
a  very  imperfect  and  discordant  administration,"  it  was  further  said, 
"for  the  court  of  original  jurisdiction  to  adopt  one  rule  of  decision, 
while  the  court  of  final  resort  was  governed  l)y  another;  and  hence  it 
follows,  that  in  questions  of  this  sort  we  should"  take  notice  of  the  local 
laws  of  a  sister  State  in  the  same  manner  the  Supreme  Court  of  the 
United  States  would  do  on  a  writ  of  error  to  our  judgment."     See  also 


SECT.  I.]  PAINE    V.    SCHENECTADY   INSURANCE   CO.  737 

Baxley  v.  Linah,  16  Pa.  St.  241  ;  Rae  v.  Hulbert,  17  111.  572,  578; 
Butcher  v.  The  Bank  of  Brownsville,  2  Kans.  70  ;  2  Am.  Lead.  Cas. 
648  et  seq.  We  think  the  reasoning  is  sound,  and  that  it  is  not  sat- 
isfactorily met  by  courts  which  adopt  a  different  view.  Rape  v. 
Heaton. '9   Wis.  328,  341. 

2.  The  second  question  relates  to  the  conclusiveness  of  the  judg- 
ment. We  find,  as  claimed  by  the  defendant,  that  by  the  law  of  New 
York  an  ai)peal,  though  it  may  stay  the  execution  when  proper  security 
is  given,  does  not  affect  the  conclusiveness  of  the  judgment  so  long  as 
it  remains  unreversed.  A  judgment  so  appealed  from  is  a  valid  bar  to 
an  action  involving  the  same  controversy.  Sage  v.  Harpending,  49 
Barb.  S.  C.  166;  Harris  v.  Hammond,  18  How.  Pr.  123;  Ratlibone  v. 
Morris,  9  Ab.  Pr.  213;  Freeman  on  Judgments,  §  328.  If  the  judg- 
ment would  be  a  good  bar  to  this  action  in  New  York,  it  is  entitled  to 
have  the  same  effect  in  this  State.  Mills  v.  Duryee,  7  Cranch,  481  ; 
McElmoyle  v.  Cohen,  13  Pet.  312  ;  Jacquette  v.  Hugunon,  2  McLean, 
129.  The  case  of  Bank  of  North  America  v.  Wheeler,  28  Conn.  433,  is  a 
case  exactly  in  point.  After  the  commencement  of  that  case  in  Con- 
necticut, a  judgment  was  recovered  for  the  same  cause  of  action  in  New 
York,  and  it  was  held  that  the  judgment,  notwithstanding  it  had  been 
appealed  from,  was  a  good  bar  to  the  suit  in  Connecticut;  it  being 
found  that,  by  the  law  of  New  York,  the  appeal  operated  only  as  a  pro- 
ceeding in  error  and  did  not  vacate  the  judgment.  We  think,  there- 
fore, that  the  demurrer  to  the  first  replication  must  be  sustained. 

We  will  add,  however,  as  matter  of  practice,  that  we  think  the 
pendency  of  the  appeal  in  New  York  may  be  good  ground  for  de- 
laying judgment  here  until  the  appeal  is  disposed  of;  for  otherwise 
we  may  give  the  judgment  here  a  permanently  conclusive  effect,  whereas 
in  New  York,  if  the  appeal  is  successful,  it  will  be  conclusive  only  for 
a  short  time. 

There  are  two  other  replications  which  are  demurred  to  ;  but  we 
think  they  raise  issues  of  fact,  which  the  plaintiff  is  entitled  to  have 
tried.     The  demurrers  to  them  are,  therefore,  overruled.^ 

1  Ace.  Scott  V.  Pilkington,  2  B.  &  S.  II  ;  Taylor  v.  Shew,  39  Cal.  536  ;  Bank  of 
North  America  v.  Wheeler,  28  Conn.  433  ;  Tompkins  v.  Cooper,  97  Ga.  631,  25  S.  E. 
247  •  Dow  V.  Blake,  148  111.  76,  35  N.  E.  761  ;  Faber  v.  Hovey,  117  Mass.  107  ;  Loner- 
gan  v  Lonerc^an,  55  Neb.  641,  76  N.  W.  16  ;  Merchants'  Ins.  Co.  v.  DeWolf,  33  Pa.  45  ; 
Piedmont  &  A.  L.  Ins.  Co.  v.  Ray,  75  Va.  821 ;  Ferand  v.  Dreyfus  (Naples),  1  Ann, 
Giur.  Ital.  1,  120.     See  Heckling  v.  Allen,  15  Fed.  196.  —Ed. 

47 


738  GODAKD   V.   GKAY.  [CHAP.  XV. 


SECTION   II. 

THE   OBLIGATION   OF    A   JUDGMENT. 

GODARD  V.   GRAY. 

Court  of  Queen's  Bench.     1870. 

[Reported  Law  Reports,  6  Queen's  Bench,  139.] 

Blackburn,  J.^  In  this  case  the  plaintiffs  declare  on  a  judgment  of 
a  French  tribunal,  averred  to  have  jurisdiction  in  that  behalf. 

The  question  arises  on  a  demurrer  to  the  second  plea,  which  sets  out 
the  whole  proceedings  in  the  French  court.  By  these  it  appears  that  the 
plaintiffs,  who  are  Frenchmen,  sued  the  defendants,  wiio  are  Englishmen, 
on  a  charterparty  made  at  Sunderland,  which  charterparty  contained 
the  following  clause,  "  Penalty  for  non-performance  of  this  agreement, 
estimated  amount  of  freight."  The  French  court  below,  treating  this 
clause  as  fixing  the  amount  of  liquidated  damages,  gave  judgment  against 
the  defendants  for  the  amount  of  freight  on  two  voyages.  On  appeal, 
the  Superior  Court  reduced  the  amount  to  the  estimated  freight  of  one 
vovao-e,  giving  as  their  reason  that  the  charterparty  itself  ''fixait  I'in- 
dcmnite  a  laqucUe  chacuno  des  parties  aurait  droit  pour  inexecution  de 
la  convention  par  la  fautc  de  I'autre  ;  que  moyennant  paiement  de  cette 
indi-mnite  cliacune  des  parties  avait  le  droit  de  rompre  la  convention," 
and  the  tribunal  proceeds  to  observe  that  the  amount  tluis  decreed  was 
after  all  more  tlian  sufficient  to  cover  all  the  pUiintitTs'  loss. 

All  parties  in  France  seem  to  have  taken  it  for  granted  that  the 
words  in  the  charterparty  were  to  be  understood  in  tlieir  natural  sense; 
but  the  English  law  is  accurately  expressed  in  Abbott  on  Shipping, 
part  3,  c.  1,  s.  6,  ath  ed.,  p.  170,  and  had  that  passage  been  brought 

^  TliP  statement  of  facts  ami  arguments  of  counsel  are  omitted.  —  Ed. 


SECT.    II.]  GODARD   V.    GRAY.  739 

to  the  notice  of  the  French  tribunal,  it  would  have  known  that  in  an 
English  charterpart}-,  as  is  there  stated,  "  Such  a  clause  is  not  the  ab- 
solute limit  of  damages  on  either  side  ;  the  party  ma}-,  if  he  thinks  fit, 
ground  his  action  upon  the  other  clauses  or  covenants,  and  ma}',  in  such 
action,  recover  damages  beyond  the  amount  of  the  penalt}-,  if  in  justice 
they  shall  be  found  to  exceed  it.  On  the  other  hand,  if  the  party  sue 
on  such  a  penal  clause,  he  cannot,  in  effect,  recover  more  than  the  dam- 
age actually  sustained."  But  it  was  not  brought  to  the  notice  of  the 
French  tribunal  that  according  to  the  interpretation  put  by  the  English 
law  on  such  a  contract,  a  penal  clause  of  this  sort  was  in  fact  idle  and 
inoperative.  If  it  had  been,  they  would,  probably,  have  interpreted  the 
English  contract  made  in  England  according  to  the  English  construc- 
tion. No  blame  can  be  imputed  to  foreign  lawyers  for  not  conjecturing 
that  the  clause  was  merel}'  a  brutum  fulnien.  The  fault,  if  any,  was 
in  the  defendants,  for  not  properly  instructing  their  French  counsel  on 
this  point. 

Still  the  fact  remains  that  we  can  see  on  the  face  of  the  proceedings 
that  the  foreign  tribunal  has  made  a  mistake  on  the  construction  of  an 
English  contract,  which  is  a  question  of  English  law  ;  and  that,  in 
consequence  of  that  mistake,  judgment  has  been  given  for  an  amount 
probably  greater  than,  or,  at  all  events,  diff"erent  from  that  for  which  it 
would  have  been  given  if  the  tribunal  had  been  correctly  informed  what 
construction  the  English  contract  bore  according  to  English  law. 

The  question  raised  by  the  plea  is,  whether  this  is  a  bar  to  the  action 
brought  in  England  to  enforce  that  judgment,  and  we  are  all  of  opinion 
that  it  is  not,  and  that  the  plaintiff  is  entitled  to  judgment. 

The  following  are  the  reasons  of  m}'  Brother  Mellor  and  myself.  My 
Brother  Hannen,  though  agreeing  in  the  result,  qualifies  his  assent  to 
these  reasons  to  some  extent,  which  he  will  state  for  himself. 

It  is  not  an  admitted  principle  of  the  law  of  nations  that  a  State  is 
bound  to  enforce  within  its  territories  the  judgment  of  a  foreign  tri- 
bunal. Several  of  the  continental  nations  (including  France)  do  not 
enforce  the  judgments  of  other  countries,  unless  where  there  are  recip- 
rocal treaties  to  that  eff'ect.  But  in  England  and  in  those  States  which 
are  governed  by  the  common  law,  such  judgments  are  enforced,  not  by 
virtue  of  an}'  treaty,  nor  by  virtue  of  any  statute,  but  upon  a  principle 
very  well  stated  by  Parke,  B.,  in  Williams  v.  Jones,  13  M.  &  W.  633  : 
"Where  a  court  of  competent  jurisdiction  has  adjudicated  a  certain  sum 
to  be  due  from  one  person  to  another,  a  legal  obligation  arises  to  pay 
that  sum,  on  which  an  action  of  debt  to  enforce  the  judgment  may  be 
maintained.  It  is  in  this  way  that  the  judgments  of  foreign  and  colonial 
courts  are  supported  and  enforced."  And  taking  this  as  the  principle, 
it  seems  to  follow  that  anythimg  which  negatives  the  existence  of  that 
legal  obligation,  or  excuses  the  defendant  from  the  performance  of  it, 
must  form  a  good  defence  to  the  action.  It  must  be  open,  therefore, 
to  the  defendant  to  show  that  the  court  which  pronounced  the  judgment 
had  not  jurisdiction  to  pronounce  it,  either  because  they  exceeded  the 


,• 


740  GODARD  V.    GRAY.  [CHAP.  XV. 

jurisdiction  given  to  tliem  b}-  tlie  foreign  law,  or  because  lie,  the  defend- 
ant, was  not  subject  to  tliat  jurisdiction;  and  so  far  the  foreign  judgment 
must  be  examinable.  Probably  the  defendant  may  show  that  the  judg- 
ment was  obtained  by  the  fraud  of  the  plaintiff,  for  that  would  show 
that  the  defendant  was  excused  from  the  performance  of  an  obligation 
thus  obtained  ;  and  it  may  be  that  where  the  foreign  court  has  know- 
ingly and  perverseh"  disregarded  the  rights  given  to  an  English  subject 
b}'  English  law,  that  forms  a  valid  excuse  for  disregarding  the  obliga- 
tion thus  imposed  on  him ;  but  we  prefer  to  imitate  the  caution  of  the 
present  Lord  Chancellor,  in  Castrique  v.  Imrie,  Law  Rep.  4  IL  L.  445, 
and  to  leave  those  questions  to  be  decided  when  they  arise,  only  observ- 
ing that  in  the  present  case,  as  in  that,  "  the  whole  of  the  facts  appear 
to  have  been  inquired  into  b}'  the  French  courts,  judicially,  honestly, 
and  with  the  intention  to  arrive  at  the  right  conclusion,  and  having  heard 
the  facts  as  stated  before  them  they  came  to  a  conclusion  which  justified 
them  in  France  in  deciding  as  they  did  decide." 

There  are  a  great  many  dicta  and  opinions  of  very  eminent  lavryers, 
tending  to  establish  that  the  defendant  in  an  action  on  a  foreign  judg- 
ment is  at  liberty  to  show  that  the  judgment  was  founded  on  a  mistake, 
and  that  the  judgment  is  so  far  examinable.  In  Houlditch  v.  Donegall, 
2  CI.  &  F.  477,  Lord  Brougham  goes  so  far  as  to  say  :  "The  language 
of  the  opinions  on  one  side  has  been  so  strong,  that  we  are  not  war- 
ranted in  calling  it  merely  the  inclination  of  our  lawyers  ;  it  is  tlieir 
decision  that  in  this  country  a  foreign  judgment  is  only  jyritna  facie, 
not  conclusive  evidence  of  a  debt."  But  there  certainly  is  no  case  de- 
cided on  such  a  principle  ;  and  the  opinions  on  the  other  side  of  the 
question  are  at  least  as  strong  as  those  to  which  Lord  Brougham  refers. 

Indeed,  it  is  difficult  to  understand  how  the  common  course  of  plead- 
ing is  consistent  with  any  notion  that  the  judgment  was  onl}-  evidence. 
If  that  were  so,  every  count  on  a  foreign  judgment  must  be  demurrable 
on  that  ground.  The  mode  of  pleading  shows  that  the  judgment  was 
considered,  not  as  vaaxeXy  prima  facie  evidence  of  tiiat  cause  of  action 
for  which  the  judgment  was  given,  but  as  in  itself  giving  rise,  at  least 
prima  facie,  to  a  legal  obligation  to  obey  that  judgment  and  pay  the 
sura  adjudged.  This  may  seem  a  technical  mode  of  dealing  with  the 
question  ;  but  in  truth  it  goes  to  the  root  of  the  matter.  For  if  the  judg- 
ment were  merely  considered  as  evidence  of  the  original  cause  of  action, 
it  must  be  open  to  meet  it  by  an}'  counter  evidence  negativing  the  exist- 
ence of  that  original  cause  of  action. 

If,  on  the  other  hand,  there  is  Vi.  prima  facie  obligation  to  obey  the 
judgment  of  a  tribunal  having  jurisdiction  over  tlie  party  and  the  cause, 
and  to  pay  the  sum  decreed,  the  question  would  be,  whether  it  was  open 
to  the  unsuccessful  party  to  try  the  cause  over  again  in  a  court,  not  sit- 
ting as  a  court  of  appeal  from  that  which  gave  the  judgment.  It  is 
quite  clear  this  could  not  be  done  where  the  action  is  brought  on  the 
judgment  of  an  English  tribunal;  and,  on  principle,  it  seems  tlie  same 
rule  should  apply,  where  it  is  brought  on  that  of  a  foreign  tribunal. 


SECT.    II.]  GODARD   V.    GRAY.  '^'^^ 

But  we  think  it  unnecessary  to  discuss  this  point,  as  the  decisions  of 
tlie  Court  of  Queen's  Bench  in  Bank  of  Australasia  r.  Nias,  IG  Q.  B.  717; 
20  L.  J.  (C.  P.)  284,  of  the  Court  of  Common  Pleas  in  Bank  of  Austral- 
asia V.  Harding,  9  C.  B.  661,  19  L.  J.  (C.  P.)  345,  and  of  the  Court  of 
Exchequer  in  De  Cosse  Brissac  v.  Rathbone,  6  H.  &  N.  301,  30  L.  J. 
(Ex.)  238,  seem  to  us  to  leave  it  no  longer  open  to  contend,  unless  in 
a  court  of  error,  that  a  foreign  judgment  can  be  impeached  on  the  ground 
fchat  it  was  erroneous  on  the  merits  ;  or  to  set  up  as  a  defence  to  an 
action  on  it,  that  the  tribunal  mistook  either  the  facts  or  the  law. 

But  there  still  remains  a  question  which  has  never,  so  far  as  we  know, 
been  expressly  decided  in  any  court. 

It  is  broadly  laid  down,  by  the  very  learned  author  of  Smith's  Lead- 
ing Cases,  in  the  original  note  to  Doe  v.  Oliver,  2  Sm.  L.  C.  2d  ed.  448, 
that  "  it  is  clear  that  if  the  judgment  appear  on  the  face  of  the  proceed- 
ings to  be  founded  on  a  mistaken  notion  of  the  English  law,"  it  would 
not  be  conclusive.  For  this  he  cites  Novelli  v.  Rossi,  2  B.  &  Ad.  757, 
which  does  not  decide  that  point,  and  no  other  authority  ;  but  the  great 
learning  and  general  accuracy  of  the  writer  makes  his  unsupported  opin- 
ion an'authoritv  of  weight;  and  accordingly  it  has  been  treated  with 
respect.  In  Scott  v.  Pilkington,  2  B.  «S=  S.  42  ;  31  L.  J.  (Q.  B.)  89,  the 
court  expressly  declined  to  give  any  opinion  on  the  point  not  then  raised 
before  them.  But  we  cannot  find  that  it  has  been  acted  upon  ;  and  it 
is  worthy  of  note  that  the  present  very  learned  editors  of  Smith's  Lead-  " 
ing  Cases  have  very  materially  qualified  his  position,  and  state  it  thus, 
if  the  judgment  "be  founded  on  an  incorrect  view  of  the  English  law, 
knowingly  or  perversely  acted  on  ;  "  the  doctrine  thus  qualified  does  not 
apply  to  the  present  case,  and  there  is,  therefore,  no  need  to  inquire 
how  far  it  is  accurate. 

But  the  doctrine  as  laid  down  by  Mr.  Smith  does  apply  here ;  and 
we  must  express  an  opinion  on  it,  and  we  think  it  cannot  be  supported, 
and  that  the  defendant  can  no  more  set  up  as  an  excuse,  relieving  him 
from  the  duty  of  paying  the  amount  awarded  by  the  judgment  of  a  for- 
eign tribunal" having  jurisdiction  over  him  and  the  cause,  that  the  judg- 
ment proceeded  on  a  mistake  as  to  English  law,  than  he  could  set  up 
as  an  excuse  that  there  had  been  a  mistake  as  to  the  law  of  some  third 
country  incidentally  involved,  or  as  to  any  other  question  of  fact. 

It  can  make  no  difference  that  the  mistake  appears  on  the  face  of  the 
proceedings.  That,  no  doubt,  greatly  facilitates  the  proof  of  the  mis- 
take ;  but°if  the  principle  be  to  inquire  whether  the  defendant  is  relieved 
from  a  prima  facie  duty  to  obey  the  judgment,  he  must  be  equally  re- 
lieved, whether  the  mistake  appears  on  the  face  of  the  proceedings  or 
is  to  be  proved  by  extraneous  evidence.  Nor  can  there  be  any  differ- 
ence between  a  m"i3take  made  by  the  foreign  tribunal  as  to  English  law, 
and  any  other  mistake.  No  doubt  the  English  court  can,  without  arro- 
gance, say  that  where  there  is  a  difl'erence  of  opinion  as  to  English  law, 
the  opinion  of  the  English  tribunal  is  probably  right ;  but  how  would  it 
be  if  the  question  had  arisen  as  to  the  law  of  some  of  the  numerous  per- 


742  GODARD  V.   GRAY.  [CHAP.  XV. 

tioQS  of  the  British  dominions  where  the  law  is  not  that  of  P^ngland  ? 
The  French  tribunal,  if  incidentally  inquiring  into  the  law  of  Mauritius, 
where  French  law  prevails,  would  be  more  likely  to  be  right  than  the 
English  court ;  if  inquiring  into  the  law  of  Scotland  it  would  seem  that 
there  was  about  an  equal  chance  as  to  which  took  the  right  view.  If 
it  was  sought  to  enforce  the  foreign  judgment  in  Scotland  the  chances 
as  to  which  court  was  right  would  be  altered.  Yet  it  surely  cannot  be 
said  that  a  judgment  shown  to  have  proceeded  on  a  mistaken  view  of 
Scotch  law  could  be  enforced  in  England  and  not  in  Scotland,  and  that 
one  proceeding  on  a  mistaken  view  of  English  law  could  be  enforced  in 
Scotland  but  not  in  England, 

If,  indeed,  foreign  judgments  were  enforced  by  our  courts  out  of 
politeness  and  courtesy  to  the  tribunals  of  other  countries,  one  could 
understand  its  being  said  that  though  our  courts  would  not  be  so  rude 
as  to  inquire  whether  the  foreign  court  had  made  a  mistake,  or  to  allow 
the  defendant  to  assert  that  it  had,  yet  that  if  the  foreign  court  itself 
admitted  its  blunder  they  would  not  then  act :  but  it  is  quite  contrary 
to  every  analogy  to  suppose  that  an  English  court  of  law  exercises  any 
discretion  of  this  sort.  We  enforce  a  legal  obligation,  and  we  admit 
any  defence  which  shows  that  there  is  no  legal  obligation  or  a  legal 
excuse  for  not  fulfilling  it ;  but  in  no  case  that  we  know  of  is  it  ever 
said  that  a  defence  shall  be  admitted  if  it  is  easil}'  proved,  and  rejected 
if  it  would  give  the  court  much  trouble  to  investigate  it.  Yet  on  what 
other  principle  can  we  admit  as  a  defence  that  there  is  a  mistake  of 
English  law  apparent  on  the  fttce  of  the  proceedings,  and  reject  a  de- 
fence that  there  is  a  mistake  of  Spanish  or  even  Scotch  law  apparent 
in  the  proceedings,  or  that  there  was  a  mistake  of  English  law  not  ap- 
parent on  the  proceedings,  but  which  the  defendant  avers  that  he  can 
show  did  exist. 

The  whole  law  was  much  considered  and  discussed  in  Castrique  v. 
Imrie,  Law  Rep.  4  H.  L.  414,  448,  where  the  French  tribunal  had  made 
a  mistake  as  to  the  English  law,  and  under  that  mistake  had  decreed 
the  sale  of  the  defendant's  ship.  The  decision  of  the  House  of  Lords 
was,  that  the  defendant's  title  derived  under  that  sale  was  good,  not- 
withstanding that  mistake:  Lord  Colonsay  pithily  saying,  "It  appears 
to  me  that  we  cannot  enter  into  an  inquirj-  as  to  whether  the  French 
courts  proceeded  correctl}',  either  as  to  their  own  course  of  procedure 
or  their  own  law,  nor  whether  under  the  circumstances  they  took  the 
proper  means  of  satisfying  themselves  with  respect  to  the  view  they 
took  of  the  English  law.  Nor  can  we  inquire  whether  they  were  right 
in  their  views  of  the  English  law.  The  question  is,  whether  under  the 
circumstances  of  the  case,  dealing  with  it  fairly,  the  original  tribunal 
did  proceed  against  the  sliip,  and  did  order  the  sale  of  the  ship." 

The  question  in  Castrique  v.  Imrie,  Law  Rep.  4  H.  L.  414,  was  as 
to  the  effect  on  the  property  of  a  judgment  ordering  a  ship,  locally  sit- 
uate in  France,  to  be  sold,  and  therefore  was  not  the  same  as  tlie  ques- 
tion in  this  case  as  to  what  effect  is  to  be  given  to  a  judgment  ao^ainst 


SECT.    II.]  GODARD    V.   GRAY.  743 

the  person.  But  at  least  the  decision  in  Castriqne  v.  Tmrie,  sripraA 
establishes  this,  that  a  mistake  as  to  English  law  on  the  part  of  a  for- j 
eign  tribunal  does  not  operate  in  all  cases  so  as  to  prevent  the  courts/ 
of  this  country  from  giving  effect  to  the  judgment. 

In  the  course  of  the  arguments  in  that  case  the  point  now  under  con- 
sideration was  raised.  In  the  opinion  I  delivered  at  the  bar  of  the 
House,  Law  R#p.  4  H.  L.  434-435,  the  cases  which  are  commonlj-  re- 
ferred to  as  authorities  for  the  opinion  expressed  by  Mr.  Smith  in  his 
note  to  Doe  r.  Oliver,  2  Sm.  L.  C.  2d  ed.  448,  are  referred  to.  AVe 
have  nothing  to  add  to  what  is  there  said.  And  in  the  case  of  Novelli 
V.  Rossi,  2  B.  &  Ad.  757,  it  will  be  found  on  perusing  the  judgment  of 
Lord  Tenterden  that  it  does  not  contain  one  word  in  support  of  the 
doctrine  for  which  it  is  cited.  We  think  that  case  was  rightly  decided 
for  the  reasons  given  in  Castrique  v.  Imrie,  Law  Rep.  4  H.  L.  435  ; 
but  at  all  events  it  does  not  bear  out  Mr.  Smith's  position. 

For  these  reasons  we  have  come  to  the  conclusion  that  judgment 
should  be  given  for  the  plaintiffs. 

Hannen,  J.  I  agree  that  our  judgment  should  be  for  the  plaintiffs 
in  this  case,  but  as  I  do  not  entirely  concur  in  the  reasoning  by  which 
m}'  Brothers  Blackburn  and  Mellor  have  arrived  at  that  conclusion,  I 
desire  shortly  to  explain  the  ground  on  which  mv  judgment  is  founded. 

I  think  that  the  authorities  oblige  us  (not  sitting  in  a  court  of  error) 
to  hold  that  the  defendants,  by  appearing  in  the  suit  in  France,  sub- 
mitted to  the  jurisdiction  of  the  French  tribunal,  and  thereb}'  created  a 
prima  facie  duty  on  their  part  to  obey  its  decision  ;  but  I  do  not  think 
that  any  authority  binds  us,  nor  am  I  prepared  to  decide  that  a  defend- 
ant, not  guilty  of  any  laches,  against  whom  a  foreign  judgment  in  per- 
sonam has  been  given,  is  precluded  from  impeaching  it  on  the  ground 
that  it  appears  on  the  face  of  the  proceedings  to  be  based  on  an  incor- 
rect view  of  the  English  law,  even  though  there  may  be  evidence  that 
the  foreign  court,  knowingly  or  perversely,  refused  to  recognize  that 
law. 

I  do  not,  however,  enter  at  length  upon  the  consideration  of  this 
question,  because  I  have  arrived  at  the  conclusion  that  the  defendants 
in  this  case  were  guilty  of  laches.     It  does  not  appear  upon  the  face  of 
the  proceedings,  nor  at  all,  that  the  French  court  was  informed  of  what 
the  English  law  was.     It  was  the  duty  of  the  defendants  to  bring  to  the 
knowledge  of  the  French  court  the  provision  of  the  English  law  on 
■which  the}'  now  for  the  first  time  rely,  and  having  failed  to  do  so,  they 
must  submit  to  the  consequences  of  their  own  negligence.     The  French 
courts,  like  our  own,  can  only  be  informed  of  foreign  law  by  appropri-  \ 
ate  evidence,  and  the  party  wlio  fails  to  produce  it  cannot  afterwards  ; 
impeach  the  judgment  obtained  against  him  on  account  of  an  error  into, 
which  the  foreign  court  has  fallen  presumablj'  in  consequence  of  his  own  / 
default.     Suitors  in  our  own  courts,  in   similar  circumstances,  must 
suffer  a  like  penalty  for  their  negligence.     A  defendant  who  has  omit- 
ted to  produce  evidence  which  was  procurable  at  the  trial  of  a  cause 


744  HILTON    V,    GUYOT.  [CHAP.   XV. 

cannot  have  a  rehearing  on  that  account ;  and  in  an  action  on  a  judg- 
ment of  one  of  our  own  courts,  we  do  not  permit  the  defendant  to  plead 
any  facts  which  might  have  been  pleaded  in  tlie  original  action.  These 
instances  offer  analogies  b}-  which  I  think  the  present  case  is  governed, 
and  on  this  ground  I  am  of  opinion  that  the  defendants  are  precluded 
from  impeaching  the  decision  of  the  French  tribunal,  and  that  our  judg- 
ment should  be  for  the  plaintiffs.  « 

Judgment  for  the  plaintiffs. 


HILTON   V.   GUYOT. 
Supreme  Court  of  the  United  States.     1895. 

[Reported  159  United  States,  113.] 

The  first  of  these  two  cases  was  an  action  at  law,  brought  December 
18,  1885,  in  the  Circuit  Court  of  the  United  States  for  the  Southern 
District  of  New  York,  by  Gustave  Bertin  Guyot,  as  official  liquidator 
of  the  firm  of  Charles  Fortin  &  Co.,  and  by  the  surviving  members  of 
that  firm,  all  aliens  and  citizens  of  the  Republic  of  France,  against 
Henry  Hilton  and  William  Libbey,  citizens  of  the  United  States  and  of 
the  State  of  New  York,  and  trading  as  copartners,  in  the  cities  of  New 
York  and  Paris  and  elsewhere,  under  the  firm  name  of  A,  T.  Stewart 
&  Co.  The  action  was  upon  a  judgment  recovered  in  a  Frencli  court 
at  Paris  in  the  Republic  of  France  by  the  firm  of  Charles  Fortin  &  Co., 
all  whose  members  were  French  citizens,  against  Hilton  and  Libbey, 
trading  as  copartners  as  aforesaid,  and  citizens  of  the  United  States 
and  of  the  State  of  New  York. 

The  answer  of  the  defendants  alleged  that  they  appeared  in  the 
French  court  solely  for  the  purpose  of  protecting  tlieir  property  there; 
that  there  were  gross  frauds  in  the  accounts  of  Fortin  &  Co. ;  that  the 
trial  was  not  a  fair  one;  that  b}'  the  law  of  France  if  such  a  judgment 
had  been  obtained  in  the  United  States  the  merits  of  it  would  be  re- 
examined in  the  French  courts. 

Tlie  defendants,  on  June  22,  1888.  filed  a  l)ill  in  equity  against  the 
plaintiffs,  setting  forth  the  same  matters  as  in  their  answer  to  tlie  action 
at  law,  and  praying  for  a  discovery,  and  for  an  injunction  against  tlie 
prosecution  of  the  action.     To  that  bill  a  plea  was  filed,  setting  up  the 


SECT.  II.]  HILTON    V.    GUYOT.  745 

French  judgments  ;  and  upon  a  hearing  the  bill  was  dismissed.  42  Fed. 
Rep.  249.  From  the  decree  dismissing  the  bill  an  appeal  was  taken, 
which  was  the  second  case  now  l)efore  this  court. 

The  action  at  law  afterwards  came  on  for  trial  b}-  a  jurj'.  The  court 
directed  a  verdict  for  the  plaintiffs  in  the  sum  of  $277,775.44,  being  the 
amount  of  the  French  judgment  and  interest.  The  defendants,  having 
duly  excepted  to  the  rulings  and  direction  of  the  court,  sued  out  a  writ 
of  error. 

The  writ  of  error  in  the  action  at  law  and  the  appeal  in  the  suit  in 
equit}'  were  argued  together  in  this  court  in  January,  1894,  and  by 
direction  of  the  court  were  reargued  in  April,  1894.^ 

Gray,  i?  In  order  to  appreciate  the  weight  of  the  various  author- 
ities cited  at  the  bar,  it  is  important  to  distinguish  different  kinds 
of  judgments.  Every  foreign  judgment,  of  whatever  nature,  in  order  to 
be  entitled  to  any  effect,  must  have  been  rendered  by  a  court  having 
jurisdiction  of  the  cause,  and  upon  regular  proceedings  and  due  notice. 
In  alluding  to  different  kinds  of  judgments,  therefore,  such  jurisdiction, 
pi'oceedings,  and  notice  will  be  assumed.  It  will  also  be  assumed  that 
they  are  untainted  by  fraud,  the  effect  of  which  will  be  considered 
later. 

A  judgment  in  rem,  adjudicating  the  title  to  a  ship  or  other  movable 
property  within  the  custody  of  the  court,  is  treated  as  valid  everywhere. 
As  said  by  Chief  Justice  Marshall:  "The  sentence  of  a  competent 
court,  proceeding  in  rem,  is  conclusive  with  respect  to  the  thing  itself, 
and  operates  as  an  absolute  ciiange  of  the  property.  B\-  such  sentence, 
the  right  of  the  former  owner  is  lost,  and  a  complete  title  given  to  the 
person  who  claims  under  the  decree.  No  court  of  coordinate  jurisdic- 
tion can  examine  the  sentence.  The  question,  therefore,  respecting  its 
conforrait}'  to  general  or  municipal  law  can  never  arise,  for  no  coordi- 
nate tribunal  is  capable  of  making  the  inquiry."  Williams  v.  Armroyd, 
7  Cranch,  423,  432.  The  most  common  illustrations  of  this  are  de- 
crees of  courts  of  admiralty  and  prize,  which  proceed  upon  principles 
of  international  law.  Croudson  v.  Leonard,  4  Cranch,  434  ;  Williams 
V.  Armroyd,  above  cited  ;  Ludlow  v.  Dale,  1  Johns.  Cas.  16.  But  the 
same  rule  applies  to  judgments  in  rem  under  municipal  law.  Hudson 
V.  Guestier,  4  Cranch.  293  ;  Ennis  v.  Smith,  14  How.  400,  430  ;  Wis- 
consin V.  Pelican  Ins.  Co.,  127  U.  S.  265,  291 ;  Scott  v.  McNeal,  154 
U.  S.  34,  46;  Castrique  v.  Imrie,  L.  R.  4  H.  L.  414;  Monroe  v. 
Douglas,  4  Sandf.  Ch.  126. 

A  judgment  affecting  the  status  of  persons,  such  as  a  decree  con- 
firming or  dissolving  a  marriage,  is  recognized  as  valid  in  ever}-  countr}-, 
unless    contrary  to  the   polic}'  of    its  own    law.     Cottington's    case, 

1  The  statement  of  facts  is  abridged,  and  arguments  of  counsel  are  omitted.  Part 
of  the  opinion  of  the  court  is  omitted.  —  Ed. 

2  Part  of  the  opinion  is  omitted.  See  the  opinion  at  large  for  an  exhaustive  collec- 
tion of  authorities.,  —  Ed. 


746  HILTON    V.    GUYOT.  [CHAP.  XV. 

2  Swans.  326;  Roach  v,  Garvan,  1  Ves.  Sen.  157;  Harvey  v.  Far- 
nie,  8  App.  Cas.  43  ;  Chcely  v.  Clayton,  110  U.  S.  701.  It  was  of  a 
foreign  sentence  of  divorce,  that  Lord  Chancellor  Nottingham,  in  the 
House  of  Lords,  in  1688,  in  Cottington's  case,  above  cited,  said:  "  It 
is  against  the  law  of  nations  not  to  give  credit  to  the  judgments  and 
sentences  of  foreign  countries,  till  they  be  reversed  by  the  law,  and 
according  to  the  form,  of  those  countries  wherein  they  were  given. 
For  what  right  hath  one  kingdom  to  reverse  the  judgment  of  another? 
And  how  can  we  refuse  to  let  a  sentence  take  place  till  it  be  reversed? 
And  what  confusion  would  follow  in  Christendom,  if  they  should  serve 
us  so  abroad,  and  give  no  credit  to  our  sentences." 

Other  judgments,  not  strictly  in  ron,  under  which  a  person  has  been 
compelled  to  pay  money,  are  so  far  conclusive  that  the  justice  of  the 
payment  cannot  be  impeached  in  another  country,  so  as  to  compel  him 
to  pay  it  again.  For  instance  a  judgment  in  foreign  attachment  is  con- 
clusive, as  between  the  parties,  of  the  right  to  the  property  or  money 
attached.  Story  on  Conflict  of  Laws  (2d  ed.),  §  592  a.  And  if,  on  the 
dissolution  of  a  partnership,  one  partner  promises  to  indemnify  the 
other  against  the  debts  of  the  partnership,  a  judgment  for  such  a 
debt,  under  which  the  latter  has  been  compelled  to  pay  it,  is  conclusive 
evidence  of  the  debt  in  a  suit  by  him  to  recover  the  amount  upon  the 
promise  of  indemnit}-.  It  was  of  such  a  judgment,  and  in  such  a  suit, 
that  Lord  Nottingham  said  :  ''  Let  the  plaintiff  receive  back  so  much 
of  the  money  brought  into  court  as  may  be  adequate  to  the  sum  paid  on 
the  sentence  for  custom,  the  justice  whereof  is  not  examinable  here." 
Gold  V.  Canham  (1689),  2  Swans.  325;  s.  c.  1  Cas.  in  Ch.  311.  See 
also  Tarleton  v.  Tarleton,  4  M.  «fe  S.  20 ;  Konitzky  v.  Meyer,  49  N.  Y. 
571. 

Other  foreign  judgments  which  have  been  held  conclusive  of  the 
matter  adjudged  were  judgments  discharging  obligations  contracted  in 
the  foreign  countrv  between  citizens  or  residents  thereof.  Story's  Con- 
flict of  Laws,  §§  330-341  ;  May  v.  Breed,  7  Cush.  15.  Such  was  the 
case,  cited  at  the  bar,  of  Burroughs  or  Burrows  v.  Jamineau  or  Jemino, 
Mos.  1  ;  s.  c.  2  Stra.  733  ;  2  Eq.  Cas.  Ab.  525,  pi.  7  ;  12  Vin.  Ab.  87, 
pi.  9 ;  Sel.  Cas.  in  Ch.  69  ;  1  Dick.  48. 

In  that  case,  bills  of  exchange,  drawn  in  London,  were  negotiated, 
indorsed,  and  accepted  at  Leghorn  in  Italv,  by  the  law  of  whicli  an  ac- 
ceptance became  void  if  the  drawer  failed  without  leaving  effects  in  the 
acceptor's  hands.  The  acceptor,  accordingl}',  having  received  advices 
that  the  drawer  had  failed  before  the  acceptances,  brought  a  suit  at  Leg- 
horn against  the  last  indorsees,  to  be  discharged  of  his  acceptances, 
paid  the  money  into  court  and  obtained  a  sentence  there,  by  which  the 
acceptances  were  vacated  as  against  those  indorsees  and  all  the  in- 
dorsers  and  negotiators  of  the  bills,  and  the  money  deposited  was  re- 
turned to  him.  Being  afterwards  sued  at  law  in  England  b}'  subsequent 
holders  of  the  bills,  he  applied  to  the  Court  of  Chancery  and  obtained  a 
perpetual  injunction.      Lord  Chancellor  King,  as  reported  b}-  Strange, 


SECT.  II.]  HILTOX   V.    GUYOT.  747 

♦'was  clearly  of  opinion  that  this  cause  was  to  be  determined  according 
to  the  local  laws  of  the  place  where  the  bill  was  negotiated,  and  the 
plaintiff's  acceptance  of  the  bill  having  been  vacated  and  declared  void 
by  a  court  of  competent  jurisdiction,  he  thought  that  sentence  was  con- 
clusive and  bound  the  Court  of  Chancery  here ;  "  as  reported  in  Viner, 
that  "  the  court  at  Leghorn  had  jurisdiction  of  the  thing,  and  of  the 
persons  ; "  and,  as  reported  by  Mosely,  that,  though  "  the  last  indor- 
sees had  the  sole  property  of  the  bills,  and  were  therefore  made  the 
only  parties  to  the  suit  at  Leghorn,  yet  the  sentence  made  the  accept- 
ance void  against  the  now  defendants  and  all  others."  It  is  doubtful, 
at  the  least,  whether  such  a  sentence  was  entitled  to  the  efl'ect  given  to 
it  by  Lord  Chancellor  King.  See  Novelli  v.  Rossi,  2  B.  &  Ad.  757 ; 
Castrique  v.  Imrie,  L.  R.  4  H.  L.  414,  435;  2  Smith's  Lead.  Cas.  (2d 
ed.)  450. 

The  remark  of  Lord  Hardwicke,  argimido,  as  Chief  Justice,  in 
Boucher  v.  Lawson  (1734),  that  "the  reason  gone  upon  by  Lord 
Chancellor  King,  in  the  case  of  Burroughs  v.  Jamineau,  was  certainly 
right,  that  where  any  court,  whether  foreign  or  domestic,  that  has  the 
proper  jurisdiction  of  the  case,  makes  a  determination,  it  is  conclusive 
to  all  other  courts,"  evidently  had  reference,  as  the  context  shows,  to 
judgments  of  a  court  having  jurisdiction  of  the  thing ;  and  did  not 
touch  the  effect  of  an  executory  judgment  for  a  debt.  Cas.  temp. 
Hardw.  85,  89  ;  s.  c.  Cunningham,  144,  148. 

In  former   times,   foreign  decrees  in  admiralty  in  personam   were 
executed,  even  bv  imprisonment  of  the  defendant,  by  the  Court  of  Ad- 
miralty in  England,  upon  letters  rogatory  from  the  foreign  sovereign, 
without  a  new  suit.     Its  right  to  do  so  was  recognized  by  the  Court  of 
King's  Bench  in  1607  in  a  case  of  habeas  corpus,  cited  by  the  plaintiffs, 
and°reported  as  follows:  "  If  a  man  of  Frizeland  sues  an  Englishman 
in  Frizeland  before  the  Governor  there,  and  there  recovers  against  him 
a  certain  sum;  upon   which  the  Englishman,  not  having  sufficient  to 
satisfy  it,   comes  into  England,  upon   which  the  Governor  sends   his 
letters  massive  into  England,  omnes  magistratus  infra  regnum  Anglue 
rogans,  to  make  execution  of  the  said  judgment.     The  Judge  of  the 
Admiralty  may  execute  this  judgment  by  imprisonment  of  the  party,  and 
he  shall  not  be  delivered  by  the  common  law  ;  for  this  is  by  the  law  of 
nations,  that  the  justice  of  one  nation  should  be  aiding  to  the  justice  of 
another  nation,  and  for  one  to  execute  the  judgment  of  the  other  ;  and 
the  law  of  England  takes  notice  of  this  law,  and  the  Judge  of  the  Ad- 
miralty is  the  "proper  magistrate  for  this  purpose ;  for  he  only  hath  the 
execution  of  the  civil  law  within  the  realm.     Pasch.  5  Jac.  B.  R.,  Weir's 
case,  resolved  upon  an  habeas  corpus,  and  remanded."     1  Rol.  Ab.  530, 
pi.  12  ;  6  Vin.  Ab.  512,  pi.  12.     But  the  only  question  there  raised  or 
decided  was  of  the  power  of  the   English  Court  of  Admiralty,  and  not 
of  the  conclusiveness  of  the  foreign  sentence;  and  in  later  times  the 
mode  of  enforcing  a  foreign  decree  in  admiralty  is  by  a  new  libel.     See 
The  City  of  Mecca,  5  P.  D.  28,  and  6  P.  D.  106. 


748  HILTON   V.    GUYOT.  [CHAF.  XV. 

The  extraterritorial  effect  of  judgments  in  personam,  at  law  or  in 
equity,  may  differ,  according  to  the  parties  to  the  cause.  A  judgment 
of  that  kind  between  two  citizens  or  residents  of  the  country,  and 
thereby  subject  to  the  jurisdiction,  in  which  it  is  rendered,  may  be  held 
conclusive  as  between  them  everywhere.  So,  if  a  foreigner  invokes  the 
jurisdiction  by  bringing  an  action  against  a  citizen,  both  may  be  held 
bound  by  a  judgment  in  favor  of  either.  And  if  a  citizen  sues  a  for- 
eigner, and  judgment  is  rendered  in  favor  of  the  latter,  both  may  be 
held  equally  bound.  Ricardo  v.  Garcias,  12  CI.  &  Fin.  368  ;  The  Grief- 
swald,  Swabey,  430,  435  ;  Barber  v.  Lamb,  8  C.  B.  (n.  s.)  95 ;  Lea  v. 
Deakin,  11  Biss.  23. 

The  effect  to  which  a  judgment,  purely  executory,  rendered  in  favor 
of  a  citizen  or  resident  of  the  country,  in  a  suit  there  brought  by  him 
against  a  foreigner,  may  be  entitled  in  an  action  thereon  against  the 
latter  in  his  own  country  —  as  is  the  case  now  before  us  —  presents  a 
more  difficult  question,  upon  which  there  has  been  some  diversity  of 
opinion. 

Early  in  the  last  century,  it  was  settled  in  England  that  a  foreign 
judgment  on  a  debt  was  considered  not,  like  a  judgment  of  a  domestic 
court  of  record,  as  a  record  or  a  specialty,  a  lawful  consideration  for 
which  was  conclusively  presumed ;  but  as  a  simple  contract  only.  .  .  . 
In  recent  times,  foreign  judgments  rendered  within  tlie  dominions 
of  the  English  Crown,  and  under  the  law  of  England,  after  a  trial 
on  the  merits,  and  no  want  of  jurisdiction,  and  no  fraud  or  mistake, 
being  shown  or  offered  to  be  shown,  have  been  treated  as  conclusive 
by  the  highest  courts  of  New  York,  Maine,  and  Illinois.  Lazier  v. 
Wescott  (1862),  26  N.  Y.  146,  150;  Dunstan  v.  Higgins  (1893),  138 
N.  Y.  70,  74;  Rankin  v.  Goddard  (1866),  54  Me.  28,  and  (1868)  55 
Me.  389  ;  Baker  v.  Palmer  (1876),  83  111.  568.  In  two  early  cases  in 
Ohio,  it  was  said  that  foreign  judgments  were  conclusive,  unless  shown 
to  have  been  obtained  by  fraud.  Silver  Lake  Bank  v.  Harding  (1832), 
5  Ohio,  545,  547;  Anderson  v.  Anderson  (1837),  8  Ohio,  108,'  110. 
But  in  a  later  case  in  that  State  it  was  said  that  they  were  ov\\y  prima 
facie  evidence  of  indebtedness.  Pelton  v.  Platner  (1844),  13  Ohio, 
209,  217.  In  Jones  v.  Jamison  (1860),  15  La.  Ann.  35,  the  decision 
was  only  that,  by  virtue  of  the  statutes  of  Louisiana,  a  foreign  jud^- 
^ent  merged  the  original  cause  of  action  as  against  the  plaintiff.  .  .  . 
In  view  of  all  the  authorities  upon  the  subject,  and  of  the  trend  of 
'judicial  opinion  in  this  country  and  in  England,  following  the  lead  of 
Kent  and  Story,  we  are  satisfied  that,  where  there  has  been  opportunity 
for  a  full  and  fair  trial  abroad  before  a  court  of  competent  juri,§dif;tion. 
conducting  the  trial  upon  regular  proceedingsV'aTter  due  citation  or 
voluntary  appearance  of  the  defendant,  and  undcr^  a  systcm^of  juris- 
pruclencejjkek^to^ecu^^ 

_.^£_citizens\)fMts^wt^^  and  there 

IS  nothing  to  show'"eIther~prcjudice  in~The~  court, "or  in  \^  svstem  of 
laws  under  which  it  was  sitting,  or  fraud  in  procuring  tlie  judgment,  or 


SECT.  II.]  HILTON    V.    GUYOT.  749 

an}'  other  special  reason  why  the  comit}-  of  this  nation  should  not 
allow  it  full  effect,  the  merits  of  the  case  should  not,  in  an  action 
brought  in  this  country  upon  the  judgment,  lie  tried  afresh,  as  on  a 
new  trial  or  an  appeal,  upon  the  mere  assertion  of  the  part}'  that  the  , 
judgment  was  erroneous  in  law  or  in  facL  The  defendants,  therefore,  i 
caimot  be  permitted,  upon  that  general  ground,  to  contest  the  validity 
or  the  effect  of  the  judgment  sued  on. 

But  they  have  sought  to  impeach  that  judgment  upon  several  other 
grounds,  which  require  separate  consideration. 

It  is  objected  that  the  appearance  and  litigation  of  the  defendants  in 
the  French  tribunals  were  not  voluntary,  but  by  legal  compulsion,  and 
therefore  that  the  French  courts  never  acquired  such  jurisdiction  over 
the  defendants,  that  they  should  be  held  bound  by  the  judgment. 

Upon  the  question  what  should  be  considered  such  a  voluntary  ap- 
pearance, as  to  amount  to  a  Submission  to  the  jurisdiction  of  a  foreign 
court,  there  has  been  some  difference  of  opinion  in  England.   .   .   . 

But  it  is  now  settled  in  England  that,  while  an  appearance  by  the 
defendant  in  a  court  of  a  foreign  country,  for  the  purpose  of  protect- 
ing his  property  already  in  the  possession  of  that  court,  may  not  be 
deemed  a  voluntary  appearance,  yet  an  appearance  sr>lfly  fr,v  tho  pur- 
pose of  protecting  other  propertv  in  tlmt,  country  from  seizure  is 
considered  as  a  voluntary  .ippe.ir.inne.  De  Cosse  Brissac  v.  Rathbone 
(18(J0),  (j  Jrl.  &  N.  301  ;  s.  c.  20  Law  Journal  (n.  s.),  Exch.  238; 
Schibsby  r.  Westenholz  (1870),  L.  R.  6  Q.  B.  155,  162;  Voinet  v. 
Barrett  (1885),  1  Cab.  &  El.  554;  s.  c.  54  Law  Journal  (n.  s.),  Q.  B. 
521,  and  55  Law  Journal  (n,  s.),  Q.  B.  39. 

The  present  case  is  not  one  of  a  person  travelling  through  or  casu- 
ally found  in  a  foreign  country.  The  defendants,  although  they  were 
not  citizens  or  residents  of  France,  but  were  citizens  and  residents  of 
the  State  of  New  York,  and  their  principal  place  of  business  was  in 
the  city  of  New  York,  yet  had  a  storehouse  and  an  agent  in  Paris, 
and  were  accustomed  to  purchase  large  quantities  of  goods  there, 
although  they  did  not  make  sales  in  France.  Under  such  circum- 
stances, evidence  that  their  sole  object  in  appearing  and  carrying  on 
the  litigation  in  the  French  courts  was  to  prevent  property,  in  their 
storehouse  at  Paris,  belonging  to  them,  and  within  the  jurisdiction,  but 
not  in  the  custody,  of  those  courts,  from  being  taken  in  satisfaction  of 
any  judgment  that  might  be  recovered  against  them,  would  not,  ac- 
cording to  our  law,  show  that  those  courts  did  not^cquire  jurisdiction 
of  the  persons  of  the  defendants.   .   .   . 

It  is  now  established  in  England  by  well  considered  and  strongly 
reasoned  decisions  of  the  Court  of  Appeal,  that  foreign  judgments 
may  be  impeached,  if  procured  by  false  and  fraudulent  representations 
and  testimony  of  the  plaintiff,  even  if  the  same  question  of  fraud  was 
presented  to  and  decided  by  the  foreign  court.'  .   .   . 

1  Citing  Abouloff  v.  Oppenheimer,  10  Q.  B.  D.  295  ;  Vadala  v.  Lawes,  25  Q.  B.  D. 
310  ;  Crozat  v.  Brogden,  [1894]  2  Q.  B.  30.  —  Ed. 


750  HILTON    V.   GTIYOT.  [CHAP.  XV. 

But  whether  these  decisions  can  be  followed  in  regard  to  foreign 
judgments,  consistently  with  our  own  decisions  as  to  impeaching  do- 
mestic judgments  for  fraud,  it  is  unnecessary  in  this  case  to  determine, 
because  there  is  a  distinct  and  independent  ground  upon  which  we 
are  satisfied  that  the  comit\-  of  our  nation  does  not  require  us  to 
give  conclusive  effect  to  the  judgments  of  the  courts  of  France  ;  and 
that  ground  is,  the  want  of  reciprocity,  on  the  part  of  France,  as 
to  the  effect  to  be  given  to  the  judgments  of  this  and  other  foreign 
countries.   .    .    . 

There  is  hardly  a  civilized  nation  on  either  continent,  which,  b}'  its 
general  law,  allows  conclusive  effect  to  an  executory  foreign  judgment^ 
for  the  recovery  of  mj)ney.  In  France,  and  in  a  few  smaller  States,  — 
Norway,  Portugal,  Greece,  Monaco,  and  Hayti,  —  t]ie_JU£rits  jif  the 
controvjii'sy  are  reviewed,  as  of  course,  allowing  to  the  foreign  juclg- 
ment^atjthe  most,  no  more  effect  than  of  being  prima  ,/yYo!fc-tiv44feuce 
6TiEe4^i^tice_0f_Jlie_claixru  In  the  great  majority  of  the  countries  on 
the  continent  of  Europe,  —  in  Belgium,  Holland,  Denmark,  Sweden, 
Germany,  in  man}'  cantons  of  Switzerland,  in  Russia  and  Poland,  in 
Roumania,  in  Austria  and  Hungary'  (perhaps  in  Italy),  and  in  Spain, 
—  as  well  as  in  Eg3pt,  in  Mexico,  and  in  a  great  part  of  South  Amer- 
ica, the  judgment  rendered  in  a  foreign  country  is  allowed  the  same 
effect  only  as  the  courts  of  that  countr}'  allow  to  the  judgments  of  the 
country  in  which  the  judgment  in  question  is  sought  to  be  executed. 

The  prediction  of  Mr.  Justice  Story  (in  section  618  of  his  Commen- 
taries on  the  Conflict  of  Laws,  already  cited)  has  thus  been  fulfilled, 
and  the  rule  of  reciprocity  has  worked  itself  firml}-  into  the  structure 
of  international  jurisprudence. 

The  reasonable,  if  not  the  necessarv,  conclusion  appears  to  us  to.bfi. 
that  judgments  renclered  in  France,  or  m^anv  otTier  foreign  coiintn,  by 
the  laws  of  whijih  our  own  judgments  are  reviewable  upon  the  merits, 
are  not  entitled  to  full  credit  and  conclusive  effect  when  sued  upon  in 
this  country,  but  SLve^prima  facie  evidence  only  of  the  justice  of  tlie 
plaintiffs!_clai«j. 

In  holding  such  a  judgment,  for  want  of  reciprocity,  not  to  be 
conclusive  evidence  of  the  merits  of  the  claim,  w^do"~rrdt  proceed 
upon  any  theory  of  retaliation  upon  one  person  by  reason  of  injustice 
"done  to  another;  but  u|)on  the  broml  ground  that  intiTiuitionid  law  is  ^ 
fbuncTed  upon  mutuality  and  reciprocity,  and  that  by  the  principles  of 
international ^law  recognized  in  most  civilized  nations,  and  by  the 
comit}'  ofour^own  country,  which  it  is  our  judicial  duty  to  know  and 
to  declare,  the  judgment  is  not  entitled  to  be  considered  conclusive. 

By  our  hiw,  at  the  time  of  the  adoption  of  the  Constitution,  a  forejgn 
judgment  was  considered  as  prima  facie  evidence,  and  not  conclusivel 
Thcre  is  no  statute  of  the  United  States,  and  no  treaty  of  the  United 
States  with  France,  or  with  any  other  nation,  which  has  changed  that 
law,  or  has  made  any  provision  upon  the  subject.  It  is  not  to  be 
supposed  that,  if  any  statute  or  treaty  had  been  or  should  be  made, 


V(^^ 


SECT.  II.]  HILTON    V.    GUYOT.  751 

it  would  recognize  as  conclusive  the  judgments  of  any  country,  which 
did  not  give  like  effect  to  our  own  judgments.  In  the  absence  of 
statute  or  treat}',  it  appears  to  us  equally  unwarrantable  to  assume  that 
the  comity  of  the  United  States  requires  anything  more. 

If  we  should  hold  this  judgment  to  be  conclusive,  we  should  allow  it 
an  effect  to  which,  supposing  the  defendants'  offers  to  be  sustained  by 
actual  proof,  it  would,  in  the  absence  of  a  special  treaty,  be  entitled  in 
hardly  any  other  country  in  Christendom,  except  the  country  in  which 
it  was  rendered.  If  the  judgment  had  been  rendered  in  this  country, 
or  in  any  other  outside  of  the  jurisdiction  of  France,  the  French  courts 
would  not  have  executed  or  enforced  it,  except  after  examining  into  its 
merits.  The  very  judgment  now  sued  on  would  be  held  inconclusive 
in  almost  any  other  country  than  France.  In  England,  and  in  the 
Colonies  subject  to  the  law  of  England,  the  fraud  alleged  in  its  procure- 
ment would  be  a  sufficient  ground  for  disregarding  it.  In  the  courts 
of  nearly  every  other  nation,  it  would  be  subject  to  re-examination, 
either  merely  because  it  was  a  foreign  judgment,  or  because  judgments 
of  that  nation  would  be  re-examinable  in  tlie  courts  of  France. 
For  these  reasons,  in  the  action  at  law,  the 
Judg-nient  is  reversed^  and  the  cause  remanded  to  the  Circuit  Court 

icith  directions  to  set  aside  the  verdict  and  to  order  a  netv  trial. 
For  the  same  reasons,  in  the  suit  in  equity  between  these  parties, 
the  foreign  judgment  is  not  a  bar,  and,  therefore,  the 

Decree  dismissing  the  bill  is  reversed,  the  plea  adjudged  bad,  and 
the  cause  remanded  to  the  Circuit  Court  for  further  ^proceedings 
not  inconsistent  with  this  opinion. 
Mr.  Chief  Justice  Fuller,  with  whom  concurred  Mr.  Justice  Harlan, 
Mr.  Justice  Brewer,  and  Mr.  Justice  Jackson,  dissenting. 

Plaintiffs  brought  their  action  on  a  judgment  recovered  by  them 
against  the  defendants  in  the  courts  of  France,  which  courts  had  juris- 
diction over  person  and  subject-matter,  and  in  respect  of  which  judg- 
ment no  fraud  was  alleged,  except  in  particulars  contested  in  and 
considered  by  the  French  courts.  The  question  is  whether  under  these 
circumstances,  and  in  the  absence  of  a  treaty  or  act  of  Congress,  the 
judgment  is  re-examinable  upon  thp  merits.  This  question  I  regard  as  ^ 
one  to  be  determined  by  the  ordinary  and  settled  rule  in  respect  of 
allowing  a  party,  who  has  had  an  opportunity  to  prove  his  case  in  a  ^ 

competent  court,  to  retry  it  on  the  merits,  and  it  seems  to  me  that  the         // C*  • 
doctrine  of  res  judicata  applicable  to  domestic  judgments  should  be 
applied  to  foreign  judgments  as  well,  and  rests  on  the  same  general 
ground  of  public  policy  that  there  should  be  an  end  of  litigation. 

This  application  of  the  doctrine  is  in  accordance  with  our  own  juris- 
prudence, and  it  is  not  necessary  that  we  should  hold  it  to  be  required 
by  some  rule  of  international  law.  The  fundamental  principle  con- 
cerning judgments  is  that  disputes  are  finally  determined  by  them,  and 
I  am  unable  to  perceive  why  a  judgment  in  personam  which  is  not 
open  to  question  on  the  ground  of  want  of  jurisdiction,  either  intrin- 


> 


•J^'Z  HILTON   V.    GUYOT.  [CHAP.  XV. 

sically  or  over  tue  parties,  or  of  fraud,  or  on  any  other  recognized 
ground  of  impeachment,  should  not  be  held  inter  partes,  though 
recovered  abroad,   conclusive  on  the  merits. 

Judgments  are  executory  while  unpaid,  but  in  this  country  execution 
is  not  given  upon  a  foreign  judgment  as  such,  it  being  enforced  through 
a  new  judgment  obtained  in  an  action  brought  for  that  purpose. 

The  principle  that  requires  litigation  to  be  treated  as  terminated  by- 
final  judgment  properly  rendered,  is  as  applicable  to  a  judgment  pro- 
ceeded on  in  such  an  action,  as  to  any  other,  and  forbids  the  allowance 
to  the  judgment  debtor  of  a  retrial  of  the  original  cause  of  action,  as  of 
right,  in  disregard  of  the  obligation  to  pay  arising  on  the  judgment  and 
of  the  rights  acquirpi]  by  tlip  j^iilo-niynt  creditor  thereby. 

That  any  other  conclusion  is  inadmissible  is  forcibly  illustrated  by 
the  case  in  hand.  Plaintiffs  in  error  were  trading  copartners  in  Paris 
as  well  as  in  New  York,  and  had  a  place  of  business  in  Paris  at  the 
time  of  these  transactions  and  of  the  commencement  of  the  suit  against 
them  in  France.  The  subjects  of  the  suit  were  commercial  transac- 
tions, having  their  origin,  and  partly  performed,  in  France  under  a 
contract  there  made,  and  alleged  to  be  modified  by  the  dealings  of  the 
parties  there;  and  one  of  the  claims  against  them  was  for  goods  sold 
to  them  there.  They  appeared  generally  in  the  case,  without  protest, 
and  by  counterclaims  relating  to  the  same  general  course  of  business, 
a  part  of  them  only  connected  with  the  claims  against  them,  became 
actors  in  the  suit  and  submitted  to  the  courts  tlieir  own  claims  for 
affirmative  relief,  as  well  as  the  claims  against  them.  The  courts  were 
competent,  and  they  took  the  chances  of  a  decision  in  their  favor.  As 
traders  in  France  they  were  under  the  protection  of  its  laws  and  were 
bound  by  its  laws,  its  commercial  usages,  and  its  rules  of  procedure. 
The  fact  that  they  were  Americans  and  the  opposite  parties  were  citi- 
zens of  France  is  immaterial,  and  there  is  no  suggestion  on  the  record 
that  those  courts  proceeded  on  any  other  ground  than  that  all  litigants, 
whatever  their  nationalit}',  were  entitled  to  equal  justice  therein.  If 
plaintiffs  in  error  had  succeeded  in  their  cross  suit  and  recovered  judg- 
ment against  defendants  in  error,  and  had  sued  them  here  on  that 
judgment,  defendants  in  error  would  not  have  been  permitted  to  say 
that  the  judgment  in  France  was  not  conclusive  against  them.  As 
it  was,  defendants  in  error  recovered,  and  I  think  plaintiffs  in  error 
are  not  entitled  to  try  their  fortune  anew  before  the  courts  of  this 
country  on  the  same  matters  voluntarily  submitted  by  them  to  the  de- 
cision of  the  foreign  tribunal.  We  are  dealing  with  the  judgment  of  a 
court  of  a  civilized  country,  whose  laws  and  system  of  justice  recognize 
the  general  rules  in  respect  to  property  and  rights  between  man  and 
man  prevailing  among  all  civilized  peoples.  Obviously  the  last  persons 
who  should  be  heard  to  complain  are  those  who  identified  themselves 
with  the  business  of  that  country,  knowing  that  all  their  transactions 
there  would  be  subject  to  the  local  laws  and  modes  of  doing  business. 
The  French  courts  appear  to  have   acted   "judicially,  honestly,  and 


SECT.  II.]  HILTON    V.   GUYOT.  753 

with  the  intention  to  arrive  at  the  right  conclusion  ;  "  and  a  result  thus 
reached  ought  not  to  be  disturbed. 

[The  learned  Chief  Justice  here  recited  extracts  from  the  opinions 
in  Nouvion  v.  Freeman,  15  App.  Cas.  1,  and  Godard  r.  Gray,  L.  R. 
6  Q.  B.  139,  and  continued  :] 

In  any  aspect,  it  is  difficult  to  see  why  rights  acquired  under  foreign 
judgments  do  not  belong  to  the  category  of  private  riglits  acquired 
under  foreign  laws.  Now  the  rule  is  universal  in  this  country  tliat 
private  rights  acquired  under  the  laws  of  foreign  States  will  be  re- 
spected and  enforced  in  our  courts  unless  contrary  to  the  policy  or 
prejudicial  to  the  interests  of  the  State  where  this  is  sought  to  be  done  ; 
and  although  the  source  of  this  rule  ma}-  have  been  the  comity  charac- 
terizing the  intercourse  between  nations,  it  prevails  to-day  by  its  own 
strength,  and  the  right  to  the  application  of  the  law  to  which  the 
particular  transaction  is  subject  is  a  juridical  right. 

And,  without  going  into  the  refinements  of  the  publicists  on  the 
subject,  it  appears  to  me  that  that  law  finds  authoritative  expression 
in  the  judgments  of  courts  of  competent  jurisdiction  over  parties  and 
subject-matter. 

It  is  held  by  the  majority  of  the  court  that  defendants  cannot  be 
permitted  to  contest  the  validity  and  effect  of  this  judgment  on  the 
general  ground  that  it  was  erroneous  in  law  or  in  fact ;  and  the  special 
grounds  rehed  on  are  seriatim  rejected.  In  respect  of  the  last  of 
these,  that  of  fraud,  it  is  said  that  it  is  unnecessary  in  this  case  to 
decide  whether  certain  decisions  cited  in  regard  to  impeaching  foreign 
judgments  for  fraud  could  be  followed  consistently  with  our  own  deci- 
sions as  to  impeaching  domestic  judgments  for  that  reason,  "  because 
there  is  a  distinct  and  independent  ground  upon  which  we  are  satisfied 
that  the  comity  of  our  nation  does  not  require  us  to  give  conclusive 
effect  to  the  judgments  of  the  courts  of  France,  and  that  ground  is  the 
want  of  reciprocity  on  the  part  of  France  as  to  the  effect  to  be  given  to 
the  judgments  of  this  and  other  foreign  countries."  And  the  conclu- 
sion is  announced  to  be  "  that  judgments  rendered  in  France  or  in  an)- 
other  foreign  country,  by  the  laws  of  which  our  own  judgments  are 
reviewable  upon  the  merits,  are  not  entitled  to  full  credit  and  conclu- 
sive effect  when  sued  upon  in  this  country,  hut  are  lyrima  facie  evi- 
dence only  of  the  justice  of  the  plaintiff's  claim."  In  other  words,  that 
although  no  special  ground  exists  for  impeaching  the  original  justice  of 
a  judgment,  such  as  want  of  jurisdiction  or  fraud,  the  right  to  retry  the 
merits  of  the  original  cause  at  large,  defendant  being  put  upon  proving 
those  merits,  should  be  accorded  in  every  suit  on  judgments  recovered 
in  countries  where  our  own  judgments  are  not  given  full  effect,  on  that 
ground  merely. 

I  cannot  yield  my  assent  to  the  proposition  that  because  by  legis- 
lation and  judicial  decision  in  France  that  effect  is  not  there  given 
to  judgments  recovered  in  this  country  which,  according  to  our  juris- 
prudence, we  think  should  be  given  to  judgments  wherever  recovered, 

48 


754  SADLER   V.   ROBINS.  [cHAP.  XV. 

(subject,  of  course,  to  the  recognized  exceptions,)  therefore  we  should 
pursue  the  same  line  of  conduct  as  respects  the  judgments  of  French 
tribunals.  The  application  of  the  doctine  o^  res  judicata  does  not  rest 
in  discretion  ;  and  it  is  for  the  government,  and  not  for  its  courts,  to 
adopt  the  principle  of  retorsion,  if  deemed  under  any  circumstances 
desirable  or  necessar\". 

As  the  court  expressl}-  abstains  from  deciding  whether  the  judgment 
is  impeachable  on  the  ground  of  fraud,  I  refrain  from  any  observations 
on  that  branch  of  the  case. 

Mr.  Justice  Harlan,  Mr.  Justice  Brewer,  and  Mr.  Justice  Jackson 
concur  in  this  dissent. 


SADLER  V.    ROBINS. 

Nisi  Prius,  and  Court  of  King's  Bench.     1808. 

[Reported  1  Campbell,  253.] 

Assumpsit  on  a  decree  of  the  high  Court  of  Chancery  in  the  island 
of  Jamaica.  The  declaration  stated,  that  on  the  16th  day  of  July, 
1805,  in  a  certain  cause,  wherein  James  Sadler  and  others  were  com- 
plainants, and  James  Robins  and  others,  executors  of  John  Sadler 
deceased,  were  defendants,  it  was  by  the  said  high  Court  of  Chancery 
orvlered,  adjudged,  and  decreed,  that  the  said  James  Robins  and  one 
R.  Haywood,  since  deceased,  should  on  or  before  the  first  day  of  Janu- 
ary then  next  ensuing  pay  unto  the  said  James  Sadler,  or  his  lawful 
attorney  or  attornies  in  the  said  island,  the  sum  of  £3,670  Is.  91(7. 
current  money  of  the  said  Island,  with  interest  thereon  from  the  31st 
day  of  December  then  last  past,  first  deducting  thereout  the  full  costs 
of  the  said  defendants  expended  in  the  said  suit,  the  same  to  be  taxed 
by  George  Howell.,  Esq.,  one  of  the  masters  of  the  said  court ;  and  also 
deducting  thereout  all  and  every  further  payment  or  payments  which 
the  said  James  Sadler  and  R.  Haywood  or  either  of  them  might,  on  or 
before  the  said  1st  day  of  January,  1806,  show  to  the  satisfaction  of 
the  said  George  Howell  that  they  or  either  of  them  had  pcid  on  account 
of  their  said  testator's  estate.  The  declaration  having  then  stated  a 
liability  and  promise  in  the  words  of  the  decree,  and  the  amount  of  the 
sum  to  be  paid  in  sterling  money  with  interest,  went  on  to  aver  that 
the  said  James  Robins  and  R.  Haywood  did  not  nor  did  either  of  them 
on  or  tiefore  the  1st  da}'  of  January,  1806,  or  at  any  subsequent  time, 
cause  the  costs  by  the  said  defendants  in  the  said  cause  in  the  said 
Court  of  Chancery  expended  in  that  suit  to  l)o  taxed  by  the  said  George 
Howell,  Esq.,  or  by  any  other  of  the  masters  of  the  said  Court  of 
Ciiancery,  but  as  well  the  said  James  Robins,  and  R.  Haywood,  in  the 
lifetime  of  the  said  R.  Haywood,  as  the  said  James  Robins  since  the 
death  of  the  said  R.  Haywood,  have  altogether  neglected  and  refused 


SECT.  II.]  SADLER   V.   ROBINS.  755 

SO  to  ck),  nor  did  the  said  James  Robins,  and  R.  Haywood,  in  the  life- 
time of  the  said  R.  Haywood,  on  or  before  the  said  first  day  of  January, 
1806,  show  to  the  satisfaction  of  the  said  George  Howell,  or  any  other 
master  of  the  said  court,  that  they  or  either  of  them  had  paid  on 
account  of  the  said  testator's  estate  any  sura  or  sums  of  money  what- 
soever:  Breach,  for  non-payment  of  the  said  sum  of  £3,670  Is.  9|o?. 
current  money,  with  interest  due  thereon,  as  mentioned  in  the  decree. 
Plea,  the  gejieral  issue. 

The  Attorney  General  having  opened  the  plaintiff's  case, 
Lord  Ellenborodgh  expressed   himself  of  opinion  that  the  action 
was  not  maintainable  ;  as  it  did  not  appear  what  sum  was  actually  due 
to  the  plaintiff  according  to  the  terras  of  the  decree. 

The  Attorney  General  contended  that  it  lay  upon  the  defendant  to 
reduce  the  sum  below  that  awarded  to  be  paid  on  the  first  of  January, 
1806,  and  that  if  he  took  no  steps  for  this  purpose,  the  whole  sum  of 
£3,670  Is.  9ld.  currency,  became  absolutely  due  on  that  day.  It  was 
impossible  for  the  plaintiff  either  to  tax  the  costs  of  the  defendants  in 
the  suit,  or  to  show  what  sums  of  money  any  of  them  has  paid  for 
their  testator ;  and  it  was  plain,  from  the  words  of  the  decree,  that 
before  any  deduction  was  to  be  made  by  the  plaintiff,  the  acts  of  taxing 
costs  and  proving  payments  were  to  be  done  by  the  opposite  party. 

Lord  Ellenborough.      "  Deducting  thereout  the   full  costs  of  the 
said  defendants  "  is  the  same  as  "  the  full  costs  of  the  said  defendants 
first  being  deducted  thereout ; "'  and  if  the  defendants  did  not  appear 
to  tax  their  costs,  the  plaintiff  might  have  proceeded  ex  parte.    _At_ 
present,  the  sum  due  on  the  decree  is  quite  indefinite.     The  operations  | 
Ito^ascertain  it  sliould  ha"ve  takeii~place   in  tTIel^rt  of  Chancery  in  j 
Jamaica,  and  cannot  be  gone  through  here  at  insi  prius.     Had  the 
decree  been  perfected,  I  would  have  given  effect  to  it,  as  well  as  to  a 
judsment  at  common  law.     The  one  may  be  the  consideration  for  an 
assumpsit  equally  with  the  other. ^     But  the  law  implies  a  promise  to 
pay  a  definite,  not  an  indefinite  sum. 

The  Attorney  General  then  urged  strenuously,  that  the  objection  was 
upon  the  record,  and  that  if  it  was  well  founded,  judgment  might  be 
arrested. 

Lord  Ellenborough.  If  there  is  evidently  no  consideration  to  raise 
a  promise,  so  that  the  action  cannot  be  supported,  why  should  the 
defendant  be  put  to  move  in  arrest  of  judgment?  The  plaintiff  ought 
not  to  have  brought  his  action  here,  while  the  decree  was  in  an  incom- 
plete state.  The  case  we  had  at  the  sittings  after  last  term,  Buchanan 
r.  Rucker,  1  Camp.  63,  shows  with  what  facility  these  decrees  and  judg- 
ments in  the  West  India  islands  are  obtained  ;  and  they  ought  to  be 
examined  with  some  strictness  before  they  are  put  in  force  in  this 
country.  In  many  other  cases,  when  it  is  clear  the  action  will  not  lie  ; 
although  the  objection  appears  on  the  record,  and  might  be  taken 
1  Ace.  Henderson  v.  Henderson,  6  Q.  B.  288 ;  Pennington  v.  Gibson,  16  How.  65  ; 
Meyer  v.  Brooks,  29  Or.  203.  —  Ed. 


756  CHKISTMAS   V.    RUSSELL.  [CHAP.  XV. 

advantage  of  by  motion  in  arrest  of  judgment,  or  by  writ  of  error, 
judges  are  in  tbe  liabit  of  directing  a  nonsuit. 

Tlie  plaintiff  was  tlien  called. 

The  Attorney  General  in  the  following  term  obtained  a  rule  to  show 
cause  why  this  nonsuit  should  not  be  set  aside  ;  but  cause  being  shown, 
the  judges  were  unanimously  of  opinion  that  it  ought  to  stand. 

Lord  Ellenbokough.  There  appears  to  be  due  to  the  plaintiff  upon 
the  decree  a  sum  of  money  —  x.  Till  the  sum  to  be  deducted  is  ascer- 
tained, it  is  impossible  to  say  how  much  is  reall\-  due.  The  plaintiff 
ought  to  have  taxed  the  costs  ex  parte.  There  is  no  court  where  this 
proceeding  is  not  allowed.  At  present  no  one  can  predicate  how  much 
the  defendant  is  decreed  to  pa}-.  The  decree is_th&i:£Jhj:ejj2ip£rfeci./and 
^cannot  be  the  foundation  of  an_assuTnpsit.  As  to  the  payments  on 
account  of  the  testator's  estate,  none  being  proved,  it  might  be  pre- 
sumed that  there  were  none  ;  but  there  had  certainly  been  costs  ex- 
pended in  the  suit,  and  until  they  are  deducted  according  to  the  terms 
of  the  decree,  an  action  cannot  be  maintained  upon  it. 

Grose,  J.  The  plaintiff  shows  what  sum  is  not  due  to  him,  not 
what  sum  is  due. 

Le  Blanc,  J.  It  is  clear  that  the  plaintiff  is  not  entitled  to  the 
whole  sum  mentioned  in  the  decree  ;  and  it  was  competent  to  him  to 
have  had  the  costs  taxed  at  something  however  small. 

Bayley,  J.     Of  the  same  opinion. 

Hule  discharged} 


CHRISTMAS  V.    RUSSELL. 

Supreme  Court  of  the  United  Statp:s.     1867. 

[Reported  5  Wallace,  290.] 

Clifford,  J.  Wilson,  on  the  eleventh  day  of  November,  1857,  re- 
covered judgment  in  one  of  the  count}-  courts  in  the  State  of  Kentucky, 
against  the  plaintiff  in  error,  for  the  sum  of  five  thousand  six  hundred 
and  thirty-four  dollars  and  thirteen  cents,  which,  on  the  thirty-first  day 
of  ]\Iarch,  1859,  was  affirmed  in  the  Court  of  Appeals.  Present  record 
shows  that  the  action  in  that  case  was  assumpsit,  and  tliat  it  was 
founded  upon  a  certain  promissory  note,  signed  by  the  defendant  in 
that  suit,  and  dated  at  Vicksburg,  in  the  State  of  Mississippi,  on  the 
tenth  da}'  of  March,  1840,  and  that  it  was  payable  at  the  Merchants' 
Bank,  in  New  Orleans,  and  was  duly  indorsed  to  the  plaintiff  by  the 
payee.  Process  was  duly  served  upon  the  defendant,  and  he  appeared 
in  the  case  and  pleaded  to  the  declaration.  Several  defences  were  set 
up,  but  they  were  all  finally  overruled,  and  the  verdict  and  judgment 
were  for  the  plaintiff. 

1  Ace.  Wliitaker  v.  Bramson,  2  Paine,  209.  So  of  .in  alternative  judgment  for  a 
return  or  tlie  payment  of  money.     Thorner  v.  Batory,  41  Md.  593.  — Ed. 


SECT.  II.]  CHRISTMAS   V.    RUSSELL.  757 

On  the  fourth  day  of  June,  1854,  the  prevailing  party  in  that  suit 
instituted  the  present  suit  in  the  court  below,  which  was  an  action  of 
debt  on  that  judgment,  as  appears  bj-  the  transcript.  Defendant  was 
duly  served  with  process,  and  appeared  and  filed  six  pleas  in  answer 
to  the  action.  Reference,  however,  need  only  be  particularly  made  to 
the  second  and  fourth,  as  they  embody  the  material  questions  pre- 
sented for  decision.  Substance  and  effect  of  the  second  plea  were 
that  the  note,  at  the  commencement  of  the  suit  in  Kentuck}',  was 
barred  by  the  statute  of  limitations  of  Mississippi,  the  defendant 
having  been  a  domiciled  citizen  of  that  State  when  the  cause  of  action 
accrued,  and  from  that  time  to  the  commencement  of  the  suit. 

Fourth  plea  alleges  that  the  judgment  mentioned  in  the  declaration 
was  procured  hy  the  fraud  of  the  plaintiff  in  that  suit.  Plaintiff  de- 
murred to  these  pleas,  as  well  as  to  the  fifth  and  sixth,  and  the  court 
sustained  the  demurrers.^  .  .  . 

4.  Cases  may  be  found  in  which  it  is  held  that  the  judgment  of  a 
State  court,  when  introduced  as  evidence  in  the  tribunals  of  another 
State,  are  to  be  regarded  in  all  respects  as  domestic  judgments.  On 
the  other  hand,  another  class  of  cases  might  be  cited  in  which  it  is  held 
that  such  judgments  in  the  courts  of  another  State  are  foreign  judg- 
ments, and  that  as  such  the  judgment  is  open  to  every  inquiry  to  which 
other  foreign  judgments  may  be  subjected  under  th6  rules  of  the  com- 
mon law.  Neither  class  of  these  decisions  is  quite  correct.  The}'  cer- 
tainly are  not  foreign  judgments  under  the  Constitution  and  laws  of 
Congress  in  any  proper  sense,  because  they  "  shall  have  such  faith  and 
credit  given  to  them  in  every  other  court  within  the  United  States  as 
they  have  b}'  law  or  usage  in  the  courts  of  the  State  from  whence  " 
they  were  taken,  nor  are  they  domestic  judgments  in  every  sense,  be- 
cause they  are  not  the  proper  foundation  of  final  process,  except  in 
the  State  where  they  were  rendered.  Besides,  they  are  open  to  inquir}' 
as  to  the  jurisdiction  of  the  court  and  notice  to  the  defendant ;  but  in 
all  other  respects  they  have  the  same  faith  and  credit  as  domestic  judg- 
ments. D'Arcy  v.  Ketchum  et  al.,  11  How.  165  ;  Webster  v.  Reid,  11 
How.  437. 

Subject  to  those  qualifications,  the  judgment  of  a  State  court  is  con- 
clusive in  the  courts  of  all  the  other  States  wherever  the  same  matter 
is  brought  in  controversy.  Established  rule  is,  that  so  long  as  tlie 
judgment  remains  in  force  it  is  of  itself  conclusive  of  the  right  of  the 
plaintiff  to  the  thing  adjudged  in  his  favor,  and  gives  him  a  right  to 
process,  mesne  or  final,  as  the  case  may  be,  to  execute  the  judgment. 
Voorhees  v.  United  States  Bank,  10  Pet.  449  ;  Huff  t'.  Hutchingson,  14 
How.  588. 

5.  Exactly  the  same  point  was  decided  in  the  case  of  Benton  v. 
Burgot  (10  Sergeant  &  Rawle,  240)  which,  in  all  respects,  was  sub- 
stantially like  the  present  case.     The  action  was  debt  on  judgment 

1  Only  so  much  of  the  opinion  as  discusses  the  demurrer  to  the  fourth  plea  is  given. 
—  Ed. 


758  CHEISTMAS   V.   RUSSELL.  [CHAP.  XV. 

rt'coveied  in  a  court  of  another  State,  and  the  defendant  appeared 
and  pleaded  nil  debet,  and  that  the  judgment  was  obtained  by  fraud, 
imposition,  and  mistake,  and  without  consideration.  Plaintiff  demurred 
to  those  pleas,  and  the  court  of  original  jurisdiction  gave  judgment  for 
the  defendant.  Whereupon  the  plaintiff  brought  error,  and  the  Su- 
preme Court  of  the  State,  after  full  argument,  reversed  the  judgment 
and  directed  judgment  for  the  plaintiff.  Domestic  judgments,  say  the 
Supreme  Court  of  Maine,  even  if  fraudulently  obtained,  must  never- 
theless be  considered  as  conclusive  until  reversed  or  set  aside.  Granger 
V.  Clark,  22  Me.  130.  Settled  rule,  also,  in  the  Supreme  Court  of 
Ohio,  is  that  the  judgment  of  another  State,  rendered  in  a  case  in  which 
the  court  had  jurisdiction,  has  all  the  force  in  that  State  of  a  do- 
mestic judgment,  and  that  the  plea  of  fraud  is  not  available  as  an 
answer  to  an  action  on  the  judgment.  Express  decision  of  the 
court  is,  that  such  a  judgment  can  only  be  impeached  by  a  direct  pro- 
ceeding in  chancery.     Anderson  v.  Anderson,  8  Ohio,  108. 

Similar  decisions  have  been  made  in  the  Supreme  Court  of  Massa- 
chusetts, and  it  is  there  held  that  a  party  to  a  judgment  cannot  be  per- 
mitted in  equity,  any  more  than  at  law,  collaterally  to  impeach  it  on 
the  ground  of  mistake  or  fraud,  when  it  is  offered  in  evidence  against 
him  in  support  of  the  title  which  was  in  issue  in  the  cause  in  which  it 
was  recovered.  B.  &  W.  Railroad  v.  Sparhawk,  1  Allen,  448  ;  Homer 
V.  Fish,  1  Pick.  435.  Whole  current  of  decisions  upon  the  sul)ject  in 
that  State  seems  to  recognize  the  principle  that  when  a  cause  of  action 
has  been  instituted  in  a  proper  forum,  where  all  matters  of  defence 
•were  open  to  the  party  sued,  the  judgment  is  conclusive  until  re- 
versed b\'  a  superior  court  having  jurisdiction  of  the  cause,  or  until 
the  same  is  set  aside  by  a  direct  proceeding  in  chancery.  McRae 
V.  Mattoon,  13  Pick.  57.  State  judgments,  in  courts  of  competent 
jurisdiction,  are  also  held  by  the  Su[)reme  Court  of  Vermont  to  be  con- 
clusive as  between  the  parties  until  the  same  are  reversed  or  in  some 
manner  set  aside  and  annulled.  Strangers,  say  the  court,  may  show 
that  they  were  collusive  or  fraudulent ;  but  they  bind  i)artics  and 
privies.     Atkinsons  t'.  Allen,  12  Vt.  624. 

Redfield,  Ch.  J.,  said  in  the  case  of  Hammond  v.  Wilder,  23  Vt. 
346,  that  there  was  no  case  in  which  the  judgment  of  a  court  of  record 
of  general  jurisdiction  had  been  held  void,  unless  for  a  defect  of  juris- 
diction. Less  uniformity  exists  in  the  reported  decisions  upon  the  sub- 
ject in  the  courts  of  New  York,  but  all  those  of  recent  date  are  to 
the  same  effect.  Take,  for  example,  the  case  of  Embury  v.  Conner, 
3  Coms.  522,  and  it  is  clear  that  the  same  doctrine  is  acknowledged 
and  enforced.  Indeed  the  court,  in  effect,  sa}'  that  the  rule  is  unde- 
niable that  the  judgment  or  decree  of  a  court  possessing  competent 
jurisdiction  is  final,  not  only  as  to  the  subject  thereliy  determined,  but 
as  to  every  otlicr  matter  which  the  parties  might  have  litigated  in  the 
cause,  and  which  they  might  have  iiad  decided.  Dobson  v.  Pearce, 
2  Kern.  165.     Same  rule  prevails  in  the  courts  of  New  Hampshire, 


SECT.  II.]  BULLOCK   V.    BULLOCK.  759 

Rhode  Island,  and  Connecticut,  and  in  most  of  the  other  States.  Hol- 
lister  V.  Abbott,  11  Fost.  448;  Rathbone  r.  Terry,  1  R.  I.  77;  Topp 
V.  The  Bank,  2  Swan,  188  ;  Wall  v.  Wall,  28  Miss.  413. 

For  these  reasons  our  conclusion  is,  that  the  fourth  plea  of  the  de- 
fendant is  bad  upon  general  demurrer,  and  that  there  is  no  error  in 
the  record.     The  judgment  of  the  Circuit  Court  is  therefore, 

Affirmed  with  costs. 


BULLOCK  V.   BULLOCK. 

Court  of  Errors  and  Appeals,  New  Jersey.     1894. 

[Reported  52  New  Jeisey  Equity,  561.] 

Magie,  J.^  The  appellant  in  this  cause  was  the  complainant  below. 
Her  bill  of  complaint  stated  the  following  facts,  viz.,  that  she  had 
commenced  an  action  in  the  Supreme  Court  of  the  State  of  New  York, 
which  court  had  "jurisdiction  in  the  case,"  against  respondent,  her 
former  husband,  for  the  purpose  of  dissolving  the  marriage  previously 
entered  into  by  them  ;  that  respondent  was  personally  served  with  pro- 
cess and  duly  appeared  in  said  action  ;  that  such  proceedings  were  had 
thereon  that  a  judgment  was  rendered  in  her  favor,  whereby  it  was  ad- 
judged that  said  marriage  sliould  be  dissolved  ;  that  respondent  should 
pay  to  her,  as  alimony,  $100  on  the  first  day  of  each  month,  commencing 
June  1,  1892.  and  should  execute  a  mortgage  as  security  for  such  pay- 
ments, upon  lands  in  the  State  of  New  Jersey,  of  such  form  and  con- 
taining such  provisions  as  the  court  should  subsequently  direct  and 
approve  ;  that  said  court,  b}'  a  subsequent  order,  directed  respondent 
to  execute,  acknowledge,  and  deliver  to  appellant  a  mortgage  of  a 
specified  form  and  containing  specified  provisions,  upon  lands  in  this 

*  Part  of  this  opinion  and  part  of  the  dissenting  opinion,  in  which  is  discussed 
the  jurisdiction  of  the  New  York  court,  are  omitted.  —  Ed. 


760  BULLOCK   V.   BULLOCK.  [cHAP.  XV. 

State  which  were  particularly  described  in  the  order ;  that  respondent 
had  failed  and  refused  to  execute  and  deliver  the  mortgage  as  directed, 
and  made  various  mortgages  and  conveyances  of  said  lands  without 
consideration  and  with  the  fraudulent  purpose  of  defeating  appellant's 

rights. 

It  was  charged  in  the  bill  that  appellant,  by  virtue  of  the  decree  and 
order  of  the  New  York  court,  acquired  an  equitable  lien  on  said  lands 
prior  to  the  lien  and  interest  of  the  mortgagees  and  grantees  of  re- 
spondent, and  an  equitable  right  to  a  mortgage  on  said  lands  in  accord- 
ance with  the  decree  and  order. 

Upon  these  statements  and  charges  the  prayers  of  the  bill  were  for 
answer  and  discovery,  for  a  decree  setting  aside  the  mortgages  and 
conveyances  of  respondent,  and  that  he  be  "  decreed,  pursuant  to  the 
said  decree  and  order  of  the  New  York  Supreme  Court,  to  execute  and 
deliver  "  to  her  "  the  mortgage  on  said  premises  therein  directed  to  be 
made  and  delivered,  according  to  the  form  therein  provided."  There 
was  a  general  prayer  for  relief. 

Respondent  moved  the  Court  of  Chancery  to  dismiss  the  bill  pursuant 
to  the  practice  established  by  rule  215  of  that  court,  upon  the  ground 
that  the  bill  exhibited  no  equity  entitling  appellant  to  the  relief  she 
prayed  for.  The  notice  of  the  motion  specifically  set  forth  the  grounds 
of  objection. 

The  motion  was  heard  by  Vice-Chancellor  Bird,  and  upon  his  advice 
a  decree  was  made  dismissing  the  bill.  The  opinion  of  the  vice-chancel- 
lor is  reported  in  6  Dick.  Ch.  Rep.  444.  From  this  decree  appellant 
has  prosecuted  the  appeal  which  is  now  to  be  decided.  .  .   . 

In  my  judgment  it  does  not  admit  of  doubt  that  the  jurisdiction  of 
the  Supreme  Court  of  New  York,  if  properly  averred  in  the  bill,  was  a 
jurisdiction  to  make  a  decree  as  to  alimony  and  its  being  secured  by 
mortgage  on  lands  in  New  Jersey  only  in  personam,  and  to  enforce  it 
by  any  process  against  respondent  which  is  proper  in  that  State.  Nor 
was  the  decree  which  was  pronounced  by  that  court  capable  of  any 
other  construction  than  one  which  shows  it  to  have  been  within  such 
conceded  jurisdiction. 

From  these  considerations  I  deem  it  evident  that  the  theory  of  this 
bill  that,  by  virtue  of  the  decree  and  order  of  the  Supreme  Court  of  New 
York,  appellant  acquired  an  equitable  lien  on  lands  in  New  Jersey  and 
a  right  to  have  such  lands  disposed  in  a  certain  manner,  cannot  be 
sustained  without  a  disastrous  violation  of  fundamental  principles. 
The  decree  and  order  of  that  court  does  not  pretend  to  have  any 
such  purpose  or  effect,  nor  could  that  court  be  empowered  to  make 
a  decree  having  such  an  effect. 

But  it  is  ingeniously  contended  in  this  court  that  the  decree  and 
order  of  the  Supreme  Court  of  New  York  imposed  upon  respondent  a 
personal  obligation  to  do  what  thfl,t  decree  and  order  had  directed  him 
to  do,  and  tiiat  a  court  of  equity  in  New  Jersey  ought  to  compel  him 
to  perform  that  obligation  as  it  would  compel  him  to  perform  his  con- 


SECT.  II.J 


BULLOCK    V.    BULLOCK. 


761 


tract  to  convey  or  mortgage  lands  in  its  jurisdiction.  Moreover^it  is 
contended  that  the  provisions  of  section  1  of  article  4  of  tlie  Constitu- 
tion of  the  United  States,  requiring  full  faith  and  credit  to  be  given  in 
each  State  to  the  records  and  judicial  proceedings  of  every  other  State 
impart  to  this  decree  and  order  a  conclusive  force  with  respect  to  the 
mortgage  directed  to  be  given  on  lands  here,  which  compels  our  courts 
to  enforce  it  by  degrees  in  conformity  therewith. 

Doubtless  the  judgment  of  the  New  York  court  must  be  accorded  in 
our  courts  a  conclusive  effect  in  certain  respects.  Thus  it  has  con- 
clusively determined  the  status  of  the  parties  to  that  action,  and  that 
the  marital  relation  previously  existing  between  them  has  been  abso- 
lutely dissolved.  If,  by  the  direction  to  pay  alimony  an  indebtedness 
arises  from  time  to  tune  as  such  pa^-raents  become  due,  an  action  at 
law  would  lie  thereon,  and  the  decree  would  furnish  conclusive  evidence 
of  such  indebtedness. 

But  the  question,  upon  the  solution  of  which  this  case  must  turn,  is 
whether  the  courts  of  New  Jersey  must  give  conclusive  effect  to  the 
decree  or  judgment  of  the  courts  of  New  York  made  in  a  case  where 
the}-  had  acquired  jurisdiction  of  the  parties  but  affecting  lands  situated 
here,  and  disposing  of  the  title  thereto  in  whole  or  in  part.  If  this 
question  is  to  be  answered  in  the  affirmative,  it  seems  evident  that  we 
accord  jurisdiction  over  lands  in  New  Jersey  to  the  courts  of  other 
States,  and,  as  was  said  b}-  Chancellor  Zabriskie,  in  Davis  v.  Headley, 
22  N.  J.  Eq.  115,  "  leave  to  the  courts  of  this  State  only  the  ministerial 
dut}'  of  executing  their  decrees."  For  the  doctrine  that  jurisdiction  re- 
specting lands  in  a  foreign  State  is  not  in  rem  but  onl}-  in  personam  is 
bereft  of  all  practical  force  if  the  decree  in  personam,  is  conclusive  and 
must  be  enforced  b}-  the  courts  of  the  situs. 

If  such  is  the  effect  which  must  be  given  to  the  judgments  and  de- 
crees of  the  courts  of  a  sister  State  respecting  lands  situated  here,  it  is 
extraordinary  that  no  trace  of  the  doctrine  can  be  found  in  text-books  or 
in  adjudicated  decisions.  My  researches  have  not  disclosed  any  sup- 
port of  the  doctrine  by  any  text-writer  of  repute  or  by  any  decision  in 
point.  The  verj'  industrious  counsel  who  maintained  this  view  in  argu- 
ment has  produced  no  authority  which,  in  my  judgment,  sustains  his 
position.  .  .  . 

The  contention  that  such  an  order  requiring  lands  in  New  Jersey  to 
be  charged  with  alimony  created  a  personal  obligation  on  respondent 
is,  in  my  judgment,  without  force.  It  is  a  misngf;  of  t<^rms  t'^  Cf41-4lif> 
bui-den_tbereby  imposed  on  respondent  a  personal  ol^licrnfiop  At  the 
most,  the  decree  and  order  imposed  a  duty  on  him,  which  duty  he  owed 
to  the  court  making  them.  That  court  can  enforce  the  duty  by  its  pro- 
cess, but  our  courts  cannot  be  required  to  issue  such  process  or  to 
make  our  decrees  operate  as  process.  Moreover,  the  substantial  part 
of  the  decree  is  comprised  in  the  dissolution  of  the  marriage  and  the 
direction  to  pay  alimony.  The  charge  of  the  alimony  upon  lands  is 
rather  in  the  nature  of  process  to  enforce  the  substantial  decretal  order 
for  alimonv. 


1 


762  BULLOCK   V.    BULLOCK.  [CHAP.  XY. 

The  establishment  of  the  contrary  doctri no  would  result  in  practically 
depriving  a  State  of  that  exclusive  control  over  immovable  property 
therein  which  has  always  beei.  '^ccoraed  '^ov  example,  by  our  statutes, 
contracts  respecting  lands,  to  be  enioiccable,  must  be  entered  into  and 
evidenced  in  a  particular  mode,  but  our  courts,  upon  equitable  grounds, 
sometimes  enforce  contracts  that  are  without  the  statute.  It  is  the 
province  of  our  legislature  to  prescribe  the  rule  for  such  contracts  and 
for  our  courts  to  construe  the  rule  so  prescribed  and  to  determine  when 
such  contracts,  whether  within  or  without  the  statute,  may  be  enforced. 
It  is  true  that  the  courts  of  another  State,  proceeding  in  personam  to 
enforce  a  contract  for  lauds  in  New  Jerse}",  would  be  bound  to  deter- 
mine whether  the  contract  was  enforceable  under  our  laws.  But  they 
would  construe  those  laws,  and  if  their  decree  in  jxirsonam  may  and 
must  be  conclusive  in  our  courts  and  compel  a  decree  in  conformity 
therewith,  it  is  obvious  that  the  contract  will  be  enforced  according 
to  whatever  construction  the  foreign  court  put  upon  our  laws,  and 
not  according  to  the  construction  of  our  own  courts.  Other  examples 
■will  occur  to  any  one  considering  the  subject. 

For  these  reasons  I  shall  vote  to  affirm  the  decree  below. 

Garrison,  J.  (concurring). 

I  concur  in  the  result  announced  b}'  Mr.  Justice  Magie,  but  not  for 
the  reasons  contained  in  the  opinion  just  read,  nor  for  those  stated  in 
the  conclusions  of  the  learned  equity  judge  who  heard  the  cause  in  the 
Court  of  Chancer3\ 

The  object  of  the  complainant's  bill  is  to  execute,  through  the 
medium  of  our  Court  of  Chancery,  an  order  made  by  the  Supreme 
Court  of  New  York  upon  the  defendant  to  secure  his  performance  of 
a  decree  rendered  therein  against  him  by  mortgaging  his  lands  in 
New  Jersey.  The  procedure  in  this  State  is  justified  under  that 
provision  of  the  federal  law  that  gives  conclusive  force  in  one  State 
to  tlie  records  and  judicial  proceedings  of  another.  The  vice  of  this 
deduction,  in  the  case  before  us,  is  that  it  assumes  that  the  order 
made  by  the  New  York  court  to  secure  the  performance  by  the  de- 
fendant of  its  decree  against  him  is  a  '■'•judgment"  of  that  State 
within  the  meaning  of  the  federal  Constitution  and  the  act  of  Con- 
gress. 

The  transcendent  force  given  by  the  federal  law  to  the  judicial  pro- 
ceedings of  sister  States  is  confined  to  such  judicial  determinations  as 
possess  the  quality  o^  ji(df/ment\  it  does  not  extend  to  proceedings 
in  the  nature  of  execution  or  to  orders  merel}-  ancillary  to  some  special 
form  of  relief. 

In  cases  that  proceed  to  judgment  in  common-law  form,  this  dis- 
tinction is  well  marked,  but  it  is  liable  to  be  lost  sight  of  in  deci- 
sions rendered  in  equity  causes  where  judgment,  in  decretal  form,  is 
often  accompanied  by  special  orders  for  particular  forms  of  relief  or 
for  the  enforcement  or  securing  of  the  execution  of  tlie  decree  pro- 
nounced.    The  distinction,  however,  is  always   a  substantial  one  that 


SECT.  IL]  bullock    V.    BULLOCK.  763 

must  not  be  overlooked  Ifecause  of  the  form  in  wliich  the  decretal  order 
may  be  framed. 

That  only  \s  judgment  that  is  pronounced  between  the  parties  to  the 
action  upon  the  matters  submitted  to  the  court  for  decision.  Tujxidg — 
menta-th+ts-i"en4ered,  the  federal  law  accorclsin_cvery  State  the  sam^ 
conclusive  forc^ possessed  in  the  State  where  they  are  rendered. 
After  judgmentin  a  State  court,  aTPtliat  follows  for  the  par[)ose  of 
enal)rmg  the  successful  party  to  reap  the  benefits  of  the  determination 
in  his  favor  is  execution  or  in  aid  of  execution.  No  interpretation  has 
ever  been  placed  upon  the  federal  Constitution  giving  conclusive  effect, 
or,  indeed,  any  effect  at  all  to  tlie  executions  of  the  judgments  rendered 
in  sister  States  or  to  any  order  merely  in  aid  thereof.  Such  orders 
lack  the  quality  oi  judgment  and  must  be  differentiated  from  judg- 
ments, even  though  embodied  in  the  same  decretal  orders  that  pro- 
nounce the  judgment  of  the  court.  Tlicse  decretal  orders  may  be 
defined  to  be  decisions  made  touching  some  matter  collateral  to  the  issue 
presented  in  the  record  or  required  to  be  passed  upon  in  order  to  carry 
into  ex'ecution  the  judgment  of  the  court.  To  these  determinations 
ancillary  to  execution,  no  extraterritorial  force  is  given  by  the  fede- 
ral law. 

That  the  order  in  the  present  case  touching  the  defendant's  land  in 
New  Jersey  is  of  this  nature  clearly  appears  in  the  case  before  us. 
Upon  this  demurrer  it  is  established  that  the  New  York  suit  was  insti- 
tuted for  the  sole  purpose  of  dissolving  the  marriage  of  the  complainant 
with  the  defendant.  Upon  the  record  thus  submitted  the  Supreme 
Court  of  New  York  pronounced  as  its  judgment  that  the  marriage 
should  be  dissolved  with  the  incident  of  alimon}'  to  the  complainant. 
Here  the  sentence  of  the  law  upon  the  record  ceases.  The  order  of 
the  court  then  proceeds  in  these  words:  "And  it  is  further  adjudged 
and  decreed  that  the  said  defendant,  within  ten  days  after  the  entr}-  of 
this  judgment  and  service  thereof  on  the  attorne}'  for  the  defendant, 
execute  and  deliver  unto  the  plaintiff  a  mortgage  covering  the  real 
propert}-  owned  h\  the  defendant  and  particularl\-  located  in  the  State 
of  New  Jersey,  which  mortgage  shall  be  of  such  form  and  contain  such 
provisions  as  shall  be  suflficient  and  requisite  to  secure  unto  the  plain- 
tiff the  faithful  performance  of  the  provisions  of  this  judgment  and  de- 
cree on  the  part  of  the  defendant  as  may  be  directed  and  approved  by 
this  court." 
~ la  jny  opinion  this  order  was  ancillary  to  execution  and  did  not  pos- 

^^^^  J:lIL^^^^^^"^~^^^^-^i^^'^^^^i^lJ'^C^^^^"^  submitte^^  to  the-coiirt 
lor  decision,  which  jvas  whether  the  marriage  between  the  parties 
shouTd^be^dissolyetL--  For  this  reasoirT~think:T5e'~coraplainant's  bill 
was   properly  dismissed. 

Van  Syckel,  J.  (dissenting). 

The  Supreme  Court  of  New  York  made  a  decree  for  divorce  in  favor 
of  the  wife,  and  ordered  that  the  husband  pay  SlOO  per  month  alimony, 
and  that  to  secure  it  to  the  wife  he  should  execute  a  mortgage  on  lands 


764  BULLOCK   V.   BULLOCK.  [CHAP.  XV. 

which  he  owned  in  New  Jersey.  Personal  service  was  made  upon  the 
husband  in  the  New  York  divorce  suit,  and  the  decree  for  divorce,  in- 
cluding the  order  to  execute  the  mortgage,  was  obtained  on  the  1st 
day  0°  July,  1892. 

On  the  19th  of  November,  1892,  on  the  application  of  the  wife's  at- 
torney, an  order  was  entered  in  the  New  York  court  specifying  the 
lands  in  New  Jersey  upon  which  the  husband  should  execute  the 
mortgage. 
^»^Jliereupon  the  wife  filed  a  bill  in  the  Court  of  Chancer}'  of  this  State 
to  compel  the  husband  to  execute  the  mortgage  in  accordance  with  the 
New  York  judgment,  and  also  to  set  aside  conveyances  of  the  property 
in  this  State  by  the  husband,  which  are  alleged  to  be  fraudulent^.   . 

It  is  undoubtedly  true  that  the  New  York  court  had  no  power  to 
create  a  lien  upon  New  Jersey  lands,  and  it  is  also  true  that  the  New 
Y'ork  court  could  have  acted  upon  the  person  of  the  husband  while 
within  its  jurisdiction  and  constrained  him  to  execute  such  a  writing  as 
would  have  been  effective  to  pass  the  title  to,  or  establish  a  lien  on, 
the  New  Jersey  lands.  The  question,  however,  is  not  what  the  New 
Y^ork  court  could  have  done,  but  what  the  courts  of  New  Jersey,  in  dis- 
charge of  her  constitutional  obligations,  should  do  iii  aid  of  tiie  wife 
after  rendition  of  the  judgment  in  New  York. 

The  New  York  court  having  jurisdiction  of  the  person  of  the  hus- 
band and  also  of  the  subject-matter  of  the  suit  there,  the  judgment  in 
that  State,  as  between  the  parties  to  that  suit,  was  conclusive  of  the 
right  of  the  wife  to  have  the  husband  execute  a  mortgage  upon  the  New 
Jersey  lands,  although  it  did  not  of  its  own  force  create  a  lien  upon 
the  lands.  As  to  the  title  to  such  lands,  it  had  the  effect  of  an  ad- 
mitted legal  contract  or  obligation  by  the  husband  to  convey  and  should 
be  enforced  in  equity  here. 

A  judgment  in  New  York  that  a  party  defendant  ehall  specifically 
perform  a  written  contract  to  convey  lands  in  New  Jersey  would  fur- 
nish no  better  foundation  for  the  interference  of  our  court  of  equity 
than  the  judgment  relied  upon  in  this  case.  In  what  respect  they 
differ  in  principle  is  not  apparent.  In  either  case  obedience  to  the 
mandate  of  the  federal  Constitution  would  give  effect  to  the  judgment 
here. 

In  Elizabeth  Savings  Institution  v.  Gerber,  8  Stew.  Eq.  153,  this 
court  held  that  a  judicial  order  in  New  York  that  the  garnishee 
owes  a  debt  to  the  defendant  in  a  judgment,  such  moneys  being  in  the 
custody  of  a  court  of  equity,  creates  per  se  a  right  to  apply  to  such 
court  for  such  moneys  in  the  same  waj'  as  an  assignment  of  such 
moneys  to  the  plaintiff  in  the  judgment  would  have  passed  such  right. 
Such  a  decree  in  the  New  York  court  settled  the  plaintiffs  right  to  the 
fund,  and  that  right  was  an  equitable  one,  which  was  enforced  in  this 
State. 

The  decree  or  judgment  in  New  York  has  the  effect  of  being  not 
vc\cv>Ay  prijna  facie  evidence,  but  conclusive  proof  of  the  rights  thereby 


SECT.  II.]  BULLOCK   V.   BULLOCK.  765 

adjudicated,  and  a  refusal  to  give  it  the  force  and  effect  in  this  respect 
which  it  had  in  the  State  in  which  it  was  rendered  denies  a  right  se- 
cured by  fundamental  law. 

The  force  and  effect  of  the  decree  for  alimony  in  Xew  York  was  not 
to  create  a  lien  upon  lands  in  New  Jersey,  but  to  conclusively  entitle 
the  wife  to  have  that  decree  enforced  against  the  husband. 

It  being  competent  for  our  courts  to  enforce  such  a  decree  made  in 
our  own  courts  by  establishing  it  as  a  lien  on  lands,  we  cannot  refuse 
like  relief  in  this  case  on  the  extraterritorial  judgment.  Huntington  v. 
Attrill,  146  U.  S.  657;  McEllmoyle  v.  Cohen,  13  Pet.  312. 

In  Cheever  v.  Wilson,  9  Wall.  108,  121,  there  was  an  order  of  the 
divorce  court  in  Indiana  directing  the  wife  to  pay  one-third  of  her  rents 
as  they  became  due  to  her  husband.  The  land  was  in.  Washington, 
where  suit  was  brought  to  enforce  payment  of  the  rents  to  the  husband. 
The  court  said  that  the  decree  in  Indiana,  so  far  as  it  related  to  the 
real  property  in  question,  could  have  no  extraterritorial  effect ;  but  if 
valid,  it  bound  these  who  were  parties  in  the  case,  and  could  have 
been  enforced  in  the  situs  rei  b}'  proper  proceedings  for  that  purpose. 

The  judgment  in  New  York  must  be  regarded  as  conclusively  im- 
posing a  legal  personal  obligation  or  duty  upon  the  husband  to  mort- 
gage his  lands  in  New  Jerse}-. 

The  New  York  judgment  is  conclusive  between  the  parties  to  it  — 

First.    As  to  the  right  to  a  divorce. 

Seco7id.    As  to  the  right  of  the  wife  to  the  alimony  allowed. 

Third.  It  is  equally  conclusive,  as  against  the  husband,  as  to  her 
right  to  have  such  alimony  secured  b}-  a  mortgage  on  his  New  Jersey 
lands,  that  being  expressly  a  part  of  the  adjudication  in  New  York. 

The  judgment  imposed  an  obligation  upon  the  husband  from  which 
he  cannot  reUeve  himself  by  removing  from  tiie  jurisdiction  in  which  it 
was  rendered  ;  that  obligation  follows  him  into  this  State. 

The  lien  does  not  by  mere  force  of  the  extraterritorial  judgment 
attach  to  lands  in  this  State.  To  impress  that  lieu  upon  lands  here 
the  intervention  of  our  court  of  equity  is  necessar\-,  just  as  it  is  neces- 
sar}'  to  sue  here  upon  a  New  York  judgment  before  execution  can 
issue  from  our  courts  to  obtain  satisfaction  of  it. 

The  husband  has  had  his  day  in  court  in  New  York,  where  all  these 
questions  have  been  adjudicated  against  him,  and  our  courts  should 
hold  that  he  is  thereby  concluded. 

The  question  in  its  true  form  is  whether  we  will  give  full  faith  and 
credit  to  the  judgment  of  the  New  York  court  in  so  far  as  it  finallj'  ad- 
judges the  questions  legally  submitted  to  it,  when  it  had  jurisdiction 
both  of  the  subject-matter  of  the  controversy  and  of  the  parties  to  it. 

It  seems  to  me  that  there  can  be  but  one  answer  to  this  question,  and 
that  the  court  below  erred  in  dismissing  the  complainant's  bill.^ 

1  Execution  will  not  be  issued  on  the  judgment  of  another  State  of  the  Union 
without  suit  upon  the  judgment.  McElmoyle  v.  Cohen,  13  Pet.  312  ;  Turley  v.  Dreyfus, 
35  La.  Ann.  510 ;  Lamberton  v.  Grant,  94  Me.  508,  48  Atl.  127.  —  Ed. 


766  CROUDSON  V.   LEONARD.  [CHAP.  X"V. 


SECTION  III. 

THE    JUDGMENT    AS    RES    JUDICATA. 


CROUDSON    V.    LEONARD. 

Supreme   Court  of  the  United  States.     1808. 

[Reported  4  Crancli,  43-1.] 

Johnson,  J.  The  action  below  was  instituted  on  a  policy  of 
insurance. 

On  behalf  of  the  insurers,  it  was  contended  that  the  policy  was  for- 
feited by  committing  a  breach  of  blockade.  It  is  not,  and  cannot  be 
made  a  question,  that  this  is  one  of  those  acts  which  will  exonerate 
the  underwriters  from  their  liability.  The  only  point  below  was  rela- 
tive to  the  evidence  upon  which  the  commission  of  the  act  may  be 
substantiated.  A  sentence  of  a  British  prize  court  in  Barbadoes  was 
given  in  evidence,  by  which  it  appeared  that  the  vessel  was  condemned 
for  attempting  to  commit  a  breach  of  blockade.  It  is  the  English 
doctrine  and  the  correct  doctrine  on  the  law  of  nations,  thatfan  at- 
tempt to  commit  a  breach  of  blockade  is  a  violation  of  belligerent 
rights,  and  authorizes  capture.  |  This  doctrine  is  not  denied,  but  the 
plaintiff  contends  that  he  did  not  commit  such  an  attempt,  and  the 
court  below  permitted  evidence  to  go  to  the  jury  to  disprove  the  fact 
on  which  the  condemnation  professes  to  proceed. 

On  this  point,  I  am  of  opinion  that  the  court  below  erred. 
I  do  not  think  it  necessary  to  go  through  the  mass  of  learning  on 
this  subject,  which  has  so  often  been  brought  to  the  notice  of  this 
court,  and  particularly  in  the  case  of  Fitzsimmons,  argued  at  this  term. 
Nearly  the  whole  of  it  will  be  found  very  well  summed  up  in  the  18th 
chapter  of  Mr.  Park's  Treatise.  The  doctrine  appears  to  me  to  rest 
upon  three  very  obvious  considerations  :  the  propriety  of  leaving  the 
coo"nizance  of  prize  questions  exclusively  to  courts  of  prize  jurisdic- 
tion —  the  very  great  inconvenience  amounting  nearly  to  an  impossi- 
bility of  fully  investigating  such  cases  in  a  court  of  common  law  — 
and  the  imi)ropriety  of  revising  the  decisions  of  the  maritime  courts 
of  other  nations,  whose  jurisdiction  is  co-ordinate  throughout  the 
world. 

It  is  sometimes  contended  that  this  doctrine  is  novel,  and  that  it 
takes  its  origin  in  an  incorrect  extension  of  the  principle  in  Hughes  v. 
Cornelius.  I  am  induced  to  l)elieve  that  it  is  coeval  with  the  species 
of  contract  to  whicli  it  is  a[)plied.  Policies  of  insurance  arc  known  to 
have  been  brought  into  England  from  a  country  that  acknowledged  the 
civil  law.     This  must  have  been  the  law  of  policies  at  the  time  when 


SECT.  III.]  CROUDSOX   V.    LEONARD,  767 

they  were  considered  as  contracts  proper  for  the  admiralty  jurisdiction, 
and  were  submitted  to  the  court  of  policies  established  in  the  reign  of 
Elizabeth.  It  is  probable  that,  at  the  time  when  the  common  law 
assumed  to  itself  exclusive  jurisdiction  of  the  contract  of  insurance, 
the  rule  was  too  much  blended  with  the  law  of  policies  to  have  been 
dispensed  with,  had  it  even  been  inconsistent  with  common  law  prin- 
ciples. But,  in  fact,  the  common  law  had  sufficient  precedent  for  this 
rule,  in  its  own  received  principles  relative  to  sentences  of  the  civil 
law  courts  of  England.  It  ma}'  be  true  that  there  are  no  cases  upon 
this  subject  prior  to  tliat  of  Hughes  v.  Cornelius,  but  this  does  not  dis- 
prove the  existence  of  the  doctrine.  There  can  be  little  necessitj-  for 
reporting  decisions  upon  questions  that  cannot  be  controverted.  Since 
the  case  of  Hughes  t;.  Cornelius,  the  doctrine  has  frequentl}'  been 
brought  to  the  notice  of  the  courts  of  Great  Britain  in  insurance  cases, 
but  always  with  a  view  to  contest  its  applicability  to  particular  cases, 
or  to  restrict  the  general  doctrine  by  exceptions,  but  the  existence 
of  the  rule  or  its  applicability  to  actions  on  policies  is  nowhere 
controverted. 

I  am  of  opinion  that  the  sentence  of  condemnation  was  conclusive 
evidence  of  the  commission  of  the  offence  for  which  the  vessel  was 
condemned,  and  as  that  offence  was  one  which  vitiated  the  policy,  the 
defendants  ought  to  have  had  a  verdict. 

Washington,  J.  The  single  question  in  this  case  is,  whether  the 
sentence  of  the  admiralty  court  at  Barbadoes,  condemning  the  brig 
"  Fame  "  and  her  cargo  as  prize,  for  an  attempt  to  break  the  blockade  of 
Martinique,  is  conclusive  evidence  against  the  insured,  to  falsifj'  his  I 
warrant}'  of  neutrality,  notwithstanding  the  fact  stated  in  the  sentence 
as  the  ground  of  condemnation  is  negatived  by  the  jury? 

This  question  has  long  been  at  rest  in  England.     The   established 
law  upon  this  subject  in  the  courts  of  that  country  is,  that  the  sentence         r, 
jof  a  foreign  court  of  competent  jurisdiction  condemning  the  property       /j« 
upon  the  ground_ttiaLlt-was  not  n&ttt]:alj.s  so  entirely  conclusive  of  the 
fagt  so  dgcjdedT  that  it  can  never  be  controverted,  directly  or  collater- 
ally, in  any  other  court  having  concurrent  jurisdiction. 

This  doctrine  seems  to  result  from  the  application  of  a  legal  prin- 
ciple which  prevails  in  respect  to  domestic  judgments,  to  the  judgments 
and  sentences  of  foreign  courts. 

It  is  a  well  established  rule  in  England,  that  the  judgment,  sentence, 
or  decree  of  a  court  of  exclusive  jurisdiction  directly  upon  the  point, 
may  be  given  in  evidence  as  conclusive  between  the  same  parties,  upon 
the  same  matter  coming  incidentally  in  question  in  another  court  for  a 
different  purpose.  It  is  not  only  conclusive  of  the  right  which  it  estab- 
lishes, but  of  the  fact  which  it  directly  decides. 

This  rule,  when  applied  to  the  sentences  of  courts  of  admiralty, 
whether  foreign  or  domestic,  produces  the  doctrine  which  I  am  now 
considering,  upon  the  ground  that  all  the  world  are  parties  in  an  admi- 
ralty cause.     The  proceedings  are  in  rem,  but  any  person  having  an 


1 


768  CROUDSON    V.   LEONARD.  [CHAP.  XY. 

interest  in  the  property  may  interpose  a  claim,  or  maj-  prosecute 
an  appeal  from  the  sentence.  The  insured  is  emphatically  a  party, 
and  in  every  instance  has  an  opportunity  to  controvert  the  alleged 
grounds  of  condemnation,  by  proving,  if  he  can,  the  neutrality  of  the 
property.  The  master  is  his  immediate  agent,  and  he  is  also  bound  to 
act  for  the  benefit  of  all  concerned,  so  that,  in  this  respect,  he  also  rep- 
resents the  insurer.  That  irregularities  have  sometimes  taken  place, 
to  the  Exclusion  of  a  fair  hearing  of  the  parties,  is  not  to  be  denied. 
But  this  furnishes  no  good  reason  against  the  adoption  of  a  general 
rule.  A  spirit  of  comit}'  has  induced  the  courts  of  England  to  pre- 
sume that  foreign  tribunals,  whether  of  prize  or  municipal  jurisdiction, 
will  act  fairly,  and  will  decide  according  to  the  laws  which  ought  to 
govern  them  ;  and  public  convenience  seems  to  require  that  a  ques-l 
tion  which  has  once  been  fairly  decided  should  not  again  oe  litigated! 
between  the  same  parties,  unless  in  a  court  of  appellate  jurisdiction. 

The  irregular  and  unjust  decisions  of  the  French  courts  of  admiralty 
of  late  3-ears  have  induced  even  English  judges  to  doubt  of  the  wis- 
dom of  tlie  above  doctrine  in  relation  to  foreign  sentences,  but  which 
they  have  acknowledged  to  be  too  well  established  for  English  tribunals 
to  shake  ;  and  the  justice  with  which  the  same  chai'ge  is  made  b}-  all 
neutral  nations  against  the  English  as  well  as  against  the  French 
courts  of  admiralty,  during  the  same  period,  has  led  many  American 
jurists  to  question  the  validity  of  the  doctrine  in  the  courts  of  our  own 
countr}-.  It  is  said  to  be  a  novel  doctrine,  lately  S[)rung  up,  and  acted 
ni)on  as  a  rule  of  decision  in  tlie  English  courts,  since  the  period  wiien 
English  decisions  have  lost  the  weight  of  authority  in  the  courts  of  the 
United  States.  It  is  this  position  which  I  shall  now  examine,  ac- 
knowledging that  I  do  not  hold  myself  bound  by  such  decisions  made 
since  the  revolution,  although,  as  evidence  of  what  the  law  was  prior 
to  that  period,  I  road  and  respect  them. 

The  authority  of  the  case  of  Hughes  v.  Cornelius,  the  earliest  we 
meet  with  as  to  the  conclusiveness  of  a  foreign  sentence,  is  admitted ; 
but  its  application  to  a  question  arising  under  a  warranty  of  neutrality 
between  the  insurer  and  insured  is  denied.  It  is  true  that,  in  that 
case,  the  only  point  expressly  decided  was,\that  the  sentence  was  con- 
clusive as  to  the  change  of  property  effected  b\'  the  condemnation.* 
But  it  is  obvious  that  the  point  decided  in  that  case  depended,  not  upon 
some  new  principle  peculiar  to  the  sentences  of  foreign  courts,  but 
upon  the  application  of  a  general  rule  of  law  to  such  sentences. 

Tiiis  case,  as  far  as  it  goes,  places  a  foreign  sentence  upon  the  same 
foundation  as  the  sentence  or  decree  of  an  English  court  acting  upon 
the  same  subject ;  and  we  have  seen  that,  by  the  general  rule  of  law, 
the  latter,  if  conclusive  at  all,  is  so  as  to  the  fact  directly  decided, 
as  well  as  to  the  ciiange  of  property  produced  by  the  establishment 
of  the  fact.  Hence  it  would  seem  to  follow,  that  if  the.  sentence 
of  a  foreign  court  of  admiralty  be  conclusive  as  to  the  property, 
it  is  equally  conclusive  of  the  matter  or  fact  directly  decided.     "What 


SECT.  III.]  CROUDSON   V.    LEONARD.  769 

is  the  matter  decided  in  tlie  case  under  consideration  ?  1  Tliat  the 
vessel  was  seized  wliilst  attempting  to  brealv  a  blocliade,  in  conse- 
quence of  whicli  she  lost  her  neutral  character  ;  and  the  change  of 
property  produced  b}'  the  sentence  of  condemnation  is  a  consequence 
of  the  matter  decided,  that  she  was,  in  effect,  enemy-propert3-.\  Can 
the  parties  to  that  sentence  be  bound  by  so  much  of  it  as  works  a  loss 
of  the  property,  because  it  was  declared  to  be  enemy-pi-opert}-,  and 
yet  be  left  free  to  litigate  anew  in  some  other  form,  the  ver}-  point  de- 
cided from  which  this  consequence  flowed?  Or  upon  what  just  prin- 
ciple, let  me  ask,  shall  a  party  to  a  suit,  who  has  once  been  hoard,  and 
whose  rights  have  been  decided  by  a  competent  tribunal,  be  permitted 
in  another  court  of  concurrent  jurisdiction,  and  in  a  different  form  of 
action,  to  litigate  the  same  question,  and  to  take  another  cliance  for 
obtaining  a  different  result?  I  confess  I  am  strongly  inclined  to  think 
that  the  case  of  Hughes  v.  Cornelius  laid  a  strong  foundation  for  the 
doctrine  which  was  built  upon  it,  and  which  for  many  3-ears  past  has 
been  established  law  in  England.  This  opinion  is  given  with  the  more 
confidence,  when  I  find  it  sanctioned  by  the  positive  declarations  of 
distin^ushed  law  characters  —  men  who  are,  of  all  others,  the  best 
able  to  testifj'  respecting  the  course  of  decisions  upon  the  doctrine  I 
am  examining,  and  the  source  from  which  it  sprung. 

In  the  case  of  Lothian  v.  Henderson,  3  Bos.  &  Pull.  499,  Chambre, 
J.,  speaking  upon  this  point,  sa3's  that  the  sentence  of  the  French 
court  was  in  that  case  conclusive  agaiuSt  the  claim  of  the  assured, 
"  agreeable  to  all  the  decisions  upon  the  subject,  beginning  witli  the 
case  of  Hughes  v.  Cornelius  (confirmed  as  that  was  by  the  opinion  of 
Lord  Holt  in  two  subsequent  cases),  and  pursuing  them  down  to  the 
present  period.  It  is  true,"  he  observes,  "that  in  Hughes  v.  Cornelius, 
the  question  upon  the  foreign  sentence  arose  in  an  action  of  trover,  and 
not  in  an  action  on  a  policy  of  assurance,  where  the  non-compliance 
with  a  warranty  of  neutralit}-  is  in  dispute.  But  from  that  period  to 
the  present,  the  doctrine  there  laid  down  respecting  foreign  sen- 
tences has  been  considered  equally  applicable  to  questions  of  warranty 
in  actions  on  policies,  as  to  questions  of  property  in  actions  of  trover." 
Le  Blanc,  J.,  sajs,  •'  that  these  sentences  are  admissible  and  conclu- 
sive evidence  of  the  fact  the}-  decide,  it  seems  not  safe  now  to  ques- 
tion :  From  the  time  of  Car.  II.  to  this  day,  they  have  been  received 
as  such,  without  being  questioned.  In  the  discussion  of  the  nature 
of  such  evidence  before  this  house  in  1776,  it  seems  not  to  have  been 
controverted ;  and  the  cases,  I  may  say,  are  numberless,  and  the 
property  immense,  which  have  been  determined  on  the  conclusiveness 
of  such  evidence,  in  man}"  of  which  cases  the  forms  in  which  they  came 
before  the  courts  in  "Westminster  Hall  were  such  as  to  have  enabled 
the  parties,  if  any  doubt  had  been  entertained,  to  have  brought  the 
question  before  a  higher  tribunal."  Lawrence,  J.,  also  speaking  of 
the  legal  effect  of  a  foreign  sentence  upon  this  point,  says,  "  as  to 


770  CUOL-DSON    V.    Li:ONARD.  [CHAP.  XV. 

which,  after  the  continued  practice  which  has  taken  place  from  the 
earliest  period,  in  whicli,  in  actions  on  policies  of  insurance,  questions 
have  arisen  on  warranties,  to  admit  such  sentences  in  evidence,  not 
onl}'  as  conclusive  in  rem,  but  also  as  conclusive  of  the  several  matters 
they  purport  to  decide  directl}'^,  I  apprehend  it  is  now  too  late  to  exam- 
ine the  practice  of  admitting  them  to  the  extent  to  which  the\'  have 
been  received,  supposing  that  practice  might,  upon  the  argument,  have 
appeared  to  have  been  doubtful  at  first."  Rooke,  J.,  Lord  Eldon,  and 
Lord  Alvanley,  all  concur  in  giving  the  same  testimony,  that  the  doc- 
trine under  consideration  had  been  established  for  a  long  period  of 
3'ears,  by  a  long  series  of  adjudication  in  the  courts  of  Westminster 
Hall. 

I  cite  this  case  for  no  other  purpose  but  to  prove  by  the  most  repect- 
able  testimony,  that  tlie  case  of  Hughes  v.  Cornelius,  decided  in  the 
reign  of  Car.  II.,  had,  bj-  a  uniform  course  of  decisions  from  that  time, 
been  considered  as  warranting  the  rule  now  so  firml}'  established  in 
England.  And  when  the  inquiry  is,  whether  the  application  of  the 
principle  laid  down  in  that  case  to  questions  arising  on  warranties  in 
actions  on  policies,  be  of  ancient  or  modern  date,  I  think  I  may  safely 
rely  upon  the  declarations  of  the  English  judges,  when  they  concur  in 
the  evidence  the}-  give  respecting  the  fact.  It  is  true  that  no  case  was 
cited  at  the  bar  recognizing  the  application  of  the  rule  to  questions 
between  the  insurer  and  insured,  prior  to  the  revolution,  except  that 
of  Fernandez  v.  Da  Costa,  which  I  admit  was  a  Nisi  Prius  decision. 
But  were  I  convinced  that  the  long  series  of  decisions  upon  this  point, 
from  the  time  of  Hughes  v.  Cornelius,  spoken  of  by  the  judges  in  the 
case  of  Lothian  v.  Henderson,  had  been  made  at  Nisi  Prius,  it  would 
not,  in  my  mind,  weaken  the  authority  of  the  doctrine.  It  would  prove 
the  sense  of  all  the  judges  of  England,  as  well  as  of  the  bar,  of  the 
correctness  and  legal  validity  of  the  rule.  It  is  not  to  be  supposed 
that  if  a  doubt  had  existed  respecting  the  law  of  those  decisions,  the 
point  would  not  liave  been  reserved  for  a  more  deliberate  examination, 
before  some  of  the  courts  of  Westminster  Hall.  But  the  case  of  Fer- 
nandez V.  Da  Costa  receives  additional  weight,  when  it  is  recollected 
that  the  judge  who  decided  it  was  Lord  Mansfield,  and  when  upon  ex- 
amining it,  we  find  no  intimation  from  him  that  there  was  any  novelty 
al  tliat  day  in  the  doctrine.  To  this  strong  evidence  of  the  antiquity 
of  the  rule,  may  be  added  that  of  Judge  Buller,  who,  at  the  time  he 
wrote  his  Nisi  Prius,  considered  it  as  then  established. 

That  the  doctrine  was  considered  as  perfectly  fixed  in  the  year  1781, 
is  plainl}'  to  be  inferred,  from  the  case  of  Bernardi  r.  Motteux.  decided 
in  tliat  year.  Lord  Mansfield  speaks  of  it  as  he  would  of  any  other 
well  esta])lished  principle  of  law,  declaring  in  general  terms,  that  the 
sentence,  as  to  that  which  is  within  it,  is  conclusive  against  all  persons, 
and  cannot  be  collateral!}'  controverted  in  any  other  suit.  The  only 
difficulty  in  that  case  was,  to  discover  the  real  ground  upon  which  the 


SECT.  III.]  CROUDSON   V.   LEONARD.  771 

foreign  sentence  proceeded,  and  the  court  in  that  and  many  subsequent 
cases  laid  down  certain  principles  auxiliary  to  the  rule,  for  the  purpose 
of  ascertaining  tne  real  import  of  the  sentence  in  relation  to  the  fact 
decided  as  between  the  insurer  and  insured.  For  if  the  sentence 
did  not  proceed  upon  the  ground  of  the  property  not  being  neutral,  it 
of  course  concluded  nothing  against  the  insured ;  since  upon  no  other 
ground  could  the  sentence  be  said  to  falsify  the  warranty. 

It  was  admitted  by  the  counsel  for  the  insured,  that,  as  between  him 
and  the  insurer,  the  sentence  is,  j^rima  facie  evidence  of  a  non-compli- 
ance with  the  warranty.     But  if  they  are  right  in  their  arguments  as 
to  the  inconclusiveness  of  the  sentence,  I  would  ask  for  the  authority 
upon  which  the  sentence  can  be  considered  as  prima  facie  evidence. 
Certainly  no  case  was  referred  to,  and  I  have  not  met  with  one  to 
warrant  the  position.     If  we  look  to  general  principles  applicable  to 
domestic  judgment,  they  are  opposed  to  it.     We  have  seen  that  the 
judgment  is  conclusive  between  the  same  parties,  upon  the  same  matter 
coming  incidentally  in  question.     The  judgment  of  a^oreigji^cauLt^is 
equally  conclusive  except  in  the  single  instance  where  the  j^art}^-  claim- 
ing the  benefit  of  it  applies  to  the  coillta  of  England  to  en/or ca^it^  iji 
which  case  only,  the  judgment  is  prima  facie  evidence.     But  it  is  to  be 
remarked,  that  in  such  a  case  the  judgment  is  no  more  conclusive  as  to 
the  right  it  establishes,  than  as  to  the  fact  it  decides.     Now  it  is  ad- 
mitted that  the  sentence  of  a  foreign  court  of  admiralty  is  conclusive 
upon  the  right  to  the  property  in  question  ;  upon  what  principle,  tlien, 
can  \t  hQ  prima  facie  evidence,  if  not  conclusive,  upon   the  facts  di- 
rectly decided  ?    A  domestic  judgment  is  not  even  2)rima  facie  evidence 
between  those  not  parties  to  it,  or  those  claiming  under  them,  and  that 
would  clearly  be  the  rule,  and  for  a  similar  reason  as  to  foreign  judg- 
ments.    If  between  the  same  parties,  the  former  is  conclusive  as  to  the 
right  and  as  to  the  facts  decided.     This  principle,  if  applied  at  all  to 
foreign  sentences,  which  it  certainly  is,  is  either  applicable  throughout, 
upon  the  ground  that  the  parties  are   the  same,  or  if  not  so,  tlien  by 
analogy  to  the  rule  applying  to  domestic  judgments,  the  sentence  can- 
not be  evidence  at  all. 

Upon  the  whole,  I  am  clearly  of  opinion,  that  the  sentence  of  the 
court  of  admiralty  at  Barbadoes,  condemning  the  brig  "Fame,"  and  her 
cargo  as  prize,  on  account  of  an  attempt  to  break  the  blockade  of  Mar- 
tinique, is  conclusive  evidence  in  this  case  against  the  insured,  to  falsify 
his  warranty  of  neutralit}'. 

If  the  injustice  of  the  belligerent  powers,  and  of  their  courts  should 
render  this  rule  oppressive  to  the  citizens  of  neutral  nations,  I  can  only 
say  with  the  judges  who  decided  the  case  of  Hughes  v.  Cornelius,  let 
the  government  in  its  wisdom  adopt  the  proper  means  to  remedy  the 
mischief. 


772  OVERBY   V.   GORDON,  fCHAP.  XV. 


OVERBY   V.   GORDON. 

Supreme  Court  of  the  United  States.     1900. 
[Reported  177  United  States,  214.] 

The  proceedings  under  review  originated  in  the  Supreme  Court  of 
the  District  of  Columbia,  by  the  filing  in  that  court,  on  January  23, 
1896,  of  a  petition  on  behalf  of  Mrs.  Gordon,  the  appellee  herein.  The 
object  of  the  petition  was  to  obtain  the  probate,  as  the  last  will  and 
testament  of  Hugli  A.  Haralson,  of  a  paper  purporting  to  have  been 
executed  by  Haralson,  and  to  obtain  a  grant  of  letters  of  administra- 
tion thereon,  with  the  will  annexed.  It  was  averred  that  Haralson,  at 
the  time  of  his  death  and  for  several  years  prior  thereto,  had  been  a 
resident  of  the  District  of  Columbia,  and  that  he  died  on  August  23, 
189.3,  in  the  county  of  De  Kalb,  State  of  Georgia,  possessed  of  per- 
sonal propert}-  of  the  value  of  about  ten  thousand  dollars,  all  of  which, 
except  an  insignificant  part  thereof,  was  at  the  time  in  the  District  of 
Columbia. 

At  the  trial  the  jurj'  found  that  Haralson  died  domiciled  in  the 
District  of  Columbia,  and  left  personal  estate  there. 

A  caveat  was  filed  by  other  next  of  kin  of  Haralson  contesting  the 
validity  of  the  alleged  will  and  the  domicil  of  the  deceased  in  the  Dis- 
trict of  Columbia.  At  the  trial  the  caveators  offered  in  evidence  a  cer- 
tified transcript  of  record  from  the  De  Kalb  Court  of  Ordinar}-,  De  Kalb 
County,  in  the  State  of  Georgia.  This  record  showed  the  appointment 
in  May,  1896,  of  Logan  Bleckley  as  administrator. 

It  is  further  recited  in  the  bill  of  exceptions  that  the  transcript 
referred  to  was  oflTered  as  tending  to  show  that  the  decedent  had  died 
a  resident  of  De  Kalb  County,  Georgia,  intestate,  "and  that  Mrs. 
Gordon  was  therebv  estopped  to  deny  that  fact."  The  trial  court, 
however,  refused  to  admit  the  record  in  evidence,  and  an  exception 
was  duly  taken  to  such   refusal. 

An  order  was  entered  admitting  the  will  to  probate  and  record  as 
the  last  will  and  testament  of  the  decedent,  and  letters  of  administra- 
tion citm  testameuto  annexo  were  decreed  to  issue  to  Hugh  H.  Gordon, 
a  son  of  the  petitioner.  An  appeal  was  thereupon  taken  by  the  cavea- 
tors to  the  Court  of  Appeals  of  the  District  of  Columbia.  Tiiat  court 
affirmed  the  order  of  the  lower  court  (Mr.  Chief  Justice  Alvey  dis- 
senting), (13  App.  D.  C.  392,)  and  a  writ  of  error  was  then  sued  out 
from  this  court. ^ 

Wuite,  J.   .   ,   .   Was  the  grant  of  letters  of  administration  by  the 

*  The  statement  of  facts  is  abridged,  and  part  of  tlie  opinion  is  omitted.  —  Ed. 


SECT.  III.]  OVERBY   V.   GORDON.  773 

Court  of  Ordinar}'  of  De  Kalb  County.  Georgia,  competent  evidence 
upon  the  issue  tried  in  the  Supreme  Court  of  the  Disuict  of  Cohirabia 
respecting  the  domicil  of  the  decedent  at  the  time  of  his  death  ? 

In  determining  this  question   it  is   important  to  keep  in  mind  the 
following  facts:  — 

At  the  time  when  the  proceedings  before  the  De  Kalb  court  were 
instituted  (April,  1896),  the  estate  of  the  deceased,  with  bat  a  trif- 
ling exception,  was  within  the  District  of  Columbia.  Not  only  this, 
but  upon  the  ground  that  the  domicil  of  Haralson  at  his  death  was 
the  District  of  Columbia,  the  jurisdiction  of  a  competent  court  of  the 
District  had  been  invoked  as  early  as  January  23,  189G,  for  the  pro- 
bate of  an  alleged  last  will  and  testament  of  Haralson  and  for  the 
grant  of  letters  of  administration  cum  testamento  annexo ;  and  on 
March  6,  1896,  the  next  of  kin,  other  than  the  proponent  of  the  alleged 
will,  had  filed  a  caveat  in  said  court  of  the  District  of  Columbia  con- 
testing the  application  for.  probate  and  grant  of  letters.  Four  days 
before  the  certification  of  issues  framed  by  reason  of  such  contest,  to 
be  tried  before  a  jury,  the  caveators  before  the  Supreme  Court  of  the 
District  of  Columbia  initiated  the  proceedings  before  the  De  Kalb 
County  Court.  It  was  upon  the  hearing  had  in  the  Supreme  Court  of 
the  District  of  Columbia  upon  the  issues  certified  on  April  10,  1896, 
that  the  adjudication  of  the  De  Kalb  County  Court  was  otFered  in 
evidence  upon  the  issue  in  respect  to  the  domicil  of  the  decedent  at 
his  death.  .   .   . 

As  said  by  this  court  in  Veach  v.  Rice,  131  U.  S.  298,  courts  of 
ordinary  in  Georgia  are  courts  of  record,  having  exclusive  and  general 
jui-isdiction  over  the  estates  of  decedents,  and  no  question  has  been 
raised  as  to  the  observance  of  the  requirements  of  the  statutes  o. 
Georgia  in  the  proceedings  which  culminated  in  the  appointment  -^f 
the  Georgia  administrator. 

The  transcript  referred  to,  however,  undoubtedly  only  justifies  th,; 
inference  that  none  other  than  the  statutory  notice  by  publication  w^^ 
given,  and  that  no  contest  was  had  in  respect  to  the  grant  of  letters. 

Jurisdiction  is  the  right  to  hear  and  decide,  and  it  must  be  exercised, 
speaking  in  a  broad  sense,  in  one  of  two  modes,  —  either  i?i  rem  or  m 
pei'sonam. 

It  will  be  observed  that  the  statutory  notice  above  referred  to  was 
not  required  to  be  directed  against  named  individuals,  nor  had  it  for 
its  object  the  obtaining  of  specific  relief  against  any  one,  but  it  was  to 
be  general,  and  its  purpose  was  to  warn  all  persons  that  it  was  pro- 
posed by  the  court  of  ordinary  to  determine  whether  a  legal  represent- 
ative should  be  appointed  to  administer  the  property  of  the  deceased 
within  the  State  of  Georgia.  The  notice  and  proceeding  was  obviously 
intended  to  have  no  greater  force  or  efficacy  against  persons  resident 
in  the  State  of  Georgia  than  against  individuals  who  might  be  resident 
without  the  State.  It  results  that  the  proceedings  referred  to  were  not 
intended  to  constitute  and  did  not  amount  to  an  action  in  personam. 


774  OVEKBY   V.    GORDON.  [CHAP.  XV. 

This  results  from  the  fact  that  they  were  devoid  of  the  elements  es- 
sential to  an  action  in  personam ;  and,  if  not  proceedings  purely  in 
rem,  the}'  possessed  so  much  of  the  characteristics  thereof,  as  not  to 
warrant  the  allowance  of  greater  efficacy  than  is  accorded  to  a  pro- 
ceeding of  that  nature. 

An  essential  characteristic,  however,  of  a  proceeding  in  rein  is  that 
there  must  be  a  res  or  subject-matter  upon  which  the  court  is  to  exer- 
cise its  jurisdiction.  In  cases  purely  in  rem,  as  in  admiralty  and  reve- 
nue cases  for  the  condemnation  or  forfeiture  of  specific  property,  a 
preliminary  seizure  of  the  property  is  necessary  to  the  power  of  the 
court  to  adjudicate  at  all.  In  other  cases,  where  the  proceedings  are 
in  form  in  2)erso?ia7n,  but  the  court  is  unable  to  acquire  jurisdiction  of 
the  person  of  the  defendant,  by  actual  or  constructive  service  of  pro- 
cess, the  action  may  proceed,  as  one  in  rem  against  the  property  of 
which  a  preliminary  seizure  or  its  equivalent  has  been  made  ;  or,  juris- 
diction may  be  exercised  without  such  preliminary  seizure,  where  the 
relief  sought  is  an  adjudication  respecting  the  title  to  or  validity  of 
alleged  liens  upon  real  estate  situate  within  the  jurisdiction  of  the  court. 
Roller  r.  Holly,  176  U.  S.  398.  To  the  class  of  cases  where  the  pro- 
ceedings are  in  form  in  rem  may  be  added  those  connected  with  the 
grant  of  letters  either  testamentarj'  or  of  administration. 

From  the  record  of  the  proceedings  instituted  in  the  De  Kalb  County 
Court  it  is  apparent  that  the  ultimate  purpose  was  to  adjudicate  upon 
and  decree  distribution  of  the  estate  ot  the  deceased,  the  appointment 
of  an  administrator  being  a  mere  preliminary  step  in  the  management 
and  control  by  the  court  of  assets  of  the  estate.  The  question  of 
domicil  would  seem  to  have  been  important  onlj-  as  establishing  the 
particular  court  of  ordinar}'  which  was  vested  with  jurisdiction  to  ad- 
minister the  assets  within  the  State  of  Georgia.  The  subject-matter 
or  res,  upon  which  the  power  of  the  court  was  to  be  exercised,  was, 
therefore,  the  estate  of  the  decedent. 

The  sovereignty  of  tlie  State  of  Georgia  and  the  jurisdiction  of 
its  courts,  however,  did  not  extend  to  and  embrace  property  not 
situated  within  the  territorial  jurisdiction  of  the  State.  To  quote  the 
language  of  Mr.  Chief  Justice  Marshall  in  Rose  v.  Himely,  4  Cranch, 
241.  277:  — 

"  It  is  repugnant  to  ever}-  idea  of  a  proceeding  in  rem  to  act  against 
a  tiling  which  is  not  in  the  power  of  the  sovereign  under  whose  au- 
thority the  court  proceeds  ;  and  no  nation  will  admit  that  its  property 
should  l)e  a])solutely  changed,  while  remaining  in  its  own  possession, 
by  a  sentence  which  is  entirely  ex  2)ar(e." 

As  said  also  in  Penno3'er  v.  Neff,  95  U.  S.  714,  722 :  — 

"Except  as  restrained  and  limited  by  the  Constitution,  the  several 
States  of  tlie  Union  possess  and  exercise  the  authority  of  inde|)cndent 
States,  and  two  well  established  principles  of  pul)lic  law  respecting  the 
jurisdiction  of  an  independent  State  over  persons  and  propert}'  are 
applicable  to  them.     One  of  these  principles  is,  that  every  State  pes- 


SECT.  III.]  OVERBY   V,   GORDON.  775 

sesses  exclusive  jurisdiction  and  sovereignty  over  persons  and  property 
"witliin  its  territor}-.  .   .  . 

"  The  other  principle  of  public  law  referred  to  follows  from  the  one 
mentioned  ;  that  is,  that  no  State  can  exercise  direct  jurisdiction  and 
authority  over  persons  or  property  without  its  territory.  (Story,  Confl. 
Laws,  c.  2  ;  Wheat.  Int.  Law,  pt.  2,  c.  2.)  Tiie  several  States  are  of 
equal  dignity  and  authority,  and  the  independence  of  one  implies  the 
exclusion  of  power  from  all  others.  And  so  it  is  laid  down  b}-  jurists, 
as  an  eleraentar}'  principle,  that  the  laws  of  one  State  have  no  opera- 
tion outside  of  its  territory,  except  so  far  as  is  allowed  by  comity  ;  and 
that  no  tribunal  established  by  it  can  extend  its  process  beyond  that 
territory  so  as  to  subject  either  persons  or  property  to  its  decisions. 
'Any  exertion  of  authority  of  this  sort  beyond  this  limit,'  says  Story, 
'is  a  mere  nullit}',  and  incapable  of  binding  such  persons  or  property 
in  any  other  tribunals.'     Story,  Confl.  Laws,  sect.  539."  < 

Now,  it  is  undeniable  that  the  sovereignt}-  of  the  State  of  Georgia 
and  the  jurisdiction  of  its  courts  at  the  time  of  the  adjudication  by  tlie 
De  Kalb  County  Court,  b}'  the  grant  of  letters  of  administration  on 
the  estate  of  Haralson,  did  not  extend  to  or  embrace  the  assets  of  the 
decedent  situated  within  the  territorial  jurisdiction  of  the  District  of 
Columbia,  and,  viewed  as  a  step  in  a  proceeding  in  rem  relating  to 
property  within  the  jurisdiction  of  the  court,  the  adjudication  of  a  grunt 
of  letters  would  have  no  binding  probative  force  in  contests  respecting 
propert}'  lying  outside  of  the  territorial  dominion  of  the  State  of  Geor- 
gia. The  decisions  in  Robertson  v.  Pickrell,  109  U.  S=  608,  and  in  the 
cases  there  relied  upon,  furnish  illustrations  of  this  principle.  Thus, 
in  the  case  just  named,  it  was  held  that  the  act  of  Congress  declaring 
the  force  and  efficacy  which  the  records  and  judicial  proceedings  of  one 
State  should  have  in  the  courts  of  another  State  did  not  require  that 
they  should  have  an}-  greater  force  and  effect  in  another  State  than  in 
the  State  where  such  records  and  judicial  proceedings  originated  and 
were  had ;  tliat  the  probate  of  a  will  in  one  State,  by  a  proceeding 
not  adversary  in  character,  merely  established  its  sufficienc}'  to  pass  all 
property  which  could  be  transferred  ni  that  State  by  a  valid  instrument 
of  that  kind,  and  the  validity  of  the  will  in  that  State  ;  and  that  such 
probate  did  not  conduce  to  establish  the  facts  upon  which  the  probate 
proceeded,  in  proceedings  respecting  real  property  situated  in  another 
State,  except  as  permitted  by  the  laws  of  such  other  State.  J 

The  reasoning  upon  which  we  base  the  conclusion  that  the  transcript 
of  record  of  the  grant  of  letters  b}-  the  De  Kalb  Count}-  Court  was  not 
entitled  to  probative  force  in  the  courts  of  another  State  in  the  contro- 
vers}-  over  the  administration  of  assets  not  within  the  territorial  juris- 
diction of  the  State  of  Georgia,  at  the  time  the  grant  of  letters  was 
made,  finds  support  in  the  opinion  delivered  by  Lord  Blackburn  in 
Concha  v.  Concha,  11  App.  Cas.  p.  541,  a  case  referred  to  in  terms  of 
approval  in  Thormann  v.  Frame,  176  U.  S.  350,  where  was  involved  a 
controversy  in  some  of  its  features  analogous  to  that  presented  in  the 
case  at  bar.     The  facts  in  the  Concha  case  were  as  follows  :  — 


776  OVERBY   V.    GOKDON.  [cHAP.  XV 

After  contest  between  a  daughter  of  a  decedent  and  the  executors 
named  in  a  document  which  purported  to  be  a  last  will  and  testament, 
the  paper  was  admitted  to  probate  by  a  judge  of  a  probate  court  in 
London,  and  he  expressly  decided,  upon  an  issue  framed  in  a  contest 
between  the  daughter  and  executors  as  to  the  domicil  of  the  decedent, 
in  favor  of  tlie  domicil  being  in  England,  and  not  in  Chili,  as  was 
claimed  by  the  daughter.  In  a  subsequent  action  before  the  Court  of 
Chancery  for  distribution  of  the  assets,  the  daughter  again  sought  to 
litigate  the  question  as  to  the  domicil  of  her  father,  and  her  riglit  to  do 
so  was  finally  adjudicated  by  the  House  of  Lords.  The  executors,  or 
those  who  had  succeeded  them  in  the  management  of  the  administra- 
tion suit,  attempted  to  avail  of  the  decree  of  the  probate  court  as  con- 
clusive upon  the  question  of  domicil,  first,  as  a  proceeding  in  ret)i, 
which  operated  an  estoppel  against  all  the  world  ;  and,  second,  as  a 
proceeding  inter  partes,  operative  as  res  adjudicata,  by  reason  of  the 
actual  contest  made  by  the  daughter.  The  decree  of  the  probate  court, 
however,  was  held  not  conclusive  in  rem  as  to  the  domicil,  because  the 
finding  as  to  domicil  was  not  necessary  to  the  decree  of  the  judge  of 
probate,  nor  conclusive  inter  ^pcw^es,  as  the  pending  controversy  was 
substantially  between  the  daughter  and  the  residuary  legatee,  and  as 
the  latter  could  not  be  bound  by  an  adjudication  upon  a  question  not 
necessary  to  be  litigated  in  the  probate  court,  and  as  estoppels  must  be 
mutual,  the  daughter  could  not  be  bound.  This  decision  of  the  House 
of  Lords,  it  will  be  borne  in  mind,  was  as  to  the  effect  to  be  given  in  one 
judicial  tribunal  in  England  to  the  decision  of  another  court  of  tlie 
same  country.  In  the  course  of  his  opinion  Lord  Blackburn  (who  per- 
haps had  in  mind  doubts  intimated  in  the  Court  of  Appeals,  29  Ch.  D. 
268,  276,  as  to  whether  the  findings  on  which  a  judgment  in  rem  is 
based,  are  in  all  cases  conclusive  against  the  world)  said  (p.  562)  :  — 

"What  he  (the  Probate  Judge)  did  decide  was  (and  to  that  extent 
I  think  the  decision  was  conclusive  on  everybody),  that  there  was  an 
executor  who  was  entitled  to  have  probate  in  England  for  the  purpose 
of  getting  in  and  taking  the  property  which  was  in  England,  and  to 
that  he  was  entitled  if  there  was  a  will  which  made  that  executor  a 
good  executor  according  to  the  law  of  England  ;  but  I  do  not  think 
that  Sir  Creswell  Creswell  had  any  power  to  say  that  the  testator  was 
or  was  not  reall}'  a  domiciled  Englishman.  If  he  had  been  a  domiciled 
American  or  domiciled  in  any  other  countrj',  I  do  not  think  that  a 
decision  of  the  judge  of  our  probate  court,  saying,  'I  find  him  to  be  a 
domiciled  Englishman,  and,  therefore,  on  that  account  grant  probate,' 
would  be  at  all  conclusive  upon  the  court  of  another  country  to  oblige 
them  to  admit  tiiat  he  was  a  domiciled  Englishman,  when  in  fact  he 
was  not;  or,  puttir.g  it  the  converse  wa}',  that  if  a  Chilian  court  had 
chosen  to  say  that  some  very  wealthy  man  was  a  domiciled  Chilian, 
and  had  therefore  granted  [)i'obate,  the  law  of  nations  would  require 
that  to  conclude  any  person  from  saying  in  tliis  country  that  he  was 
not  so." 


SECT.  III.]  OVERBY   V.    GORDON.  777 

Again,  after  referring  to  the  fact  that  upon  the  executor  proposing 
to  prove  the  will,  a  caveat  was  entered  upon  which  it  was  said  the 
probate  judge  entered  into  an  inquir}'  whether  or  not  the  testator 
was  domiciled  in  England,  and  found  that  he  was,  Lord  Blackburn 
observed  (p.  564)  :  — 

"  It  is  said  that  upon  the  caveat  in  the  suit  an  order  was  drawn  up, 
which  may  perhaps  not  mean  that,  but  which  does  look  extremeh-  as  if 
the  registrar  entered  the  judgment  that  the  judge  did  find  it.  I  cannot 
think  that  if  he  had  done  that  it  would  have  bound  everybody  univer- 
sally as  being  a  judgment  in  rem.  I  have  instanced  a  sort  of  illustra- 
tion of  it.  Supposing  he  had  done  so,  and  supposing  that  he  was 
wrong,  and  the  fact  was  that  the  testator  had  not  been  really  domiciled 
in  England,  but  had  been  domiciled,  say,  in  the  United  States,  in  jSew 
York  we  will  suppose,  could  it  possibly  have  been  said  that  the  court 
of  New  York  (which  undoubtedly  would  have  the  same  general  law  of 
nations  as  we  have,  following  the  law  of  the  domicil  to  distribute  th^ 
property)  would  have  respected  the  decision  of  the  Judge  Ordinary,  it 
establishing  that  this  will  was  proved  conclusively  as  being  enough  to 
make  this  person  executor  and  the  representative  in  England  to  obtain 
the  English  property  —  could  it  have  been  said  that  the  Judge  Ordinary 
having  erroneously  found  that  the  testator  was  domiciled  in  England 
when  in  fact  he  was  a  domiciled  citizen  of  the  United  States,  it  was  to 
conclude  them  and  conclude  everybody  to  the  fact  that  he  was  a  domi- 
ciled Englishman  until  a  foreigner  had  come  to  the  court  of  this  country 
to  obtain  a/ reversal?  1  cannot  think  so.  If  that  was  so,  how  could 
it  as  a  matter  in  rem  be  decisive  as  regards  the  reason  upon  which 
the  judge  of  the  probate  court  had  gone  ?  1  cannot  think  that  it 
would  be." 

In  Blackburn  v.  Crawford's  Lessee,  3  Wall.  175,  and  a  continuation 
'of  the  same  action  under  the  title  of  Kearney  v.  Denn  (15  Wall.  51), 
the  sole  question  at  issue  in  the  action  (ejectment)  was  the  validity  of 
an  asserted  marriage.  At  the  trial  the  defendant  offered  in  evidence, 
as  a  conclusive  estoppel  against  all  the  lessors  of  the  plaintiff  and  as 
prima  facie  evidence  to  support  the  issue  on  his  part,  a  transcript  from 
the  records  of  the  Orphans'  Court  of  Prince  George's  County,  Maryland, 
and  proposed  to  read  therefrom  the  verdict  of  the  jury  and  the  order  of 
the  Orphans'  Court  thereon  on  certain  issues  sent  from  the  Orphans' 
Court  to  the  Circuit  Court  of  said  county.  These  issues  had  been 
framed  upon  a  contest,  initiated  in  the  Orphans'  Court,  by  one  of  the 
lessors  of  the  plaintiff  who  resisted  an  application  of  Blackburn  for 
the  grant  to  him  of  letters  of  administration  on  the  estate  of  a  certain 
intestate,  such  lessor  asserting  that  he  was  nearest  of  kin  to  the  intes- 
tate, and  that  letters  should  be  granted  to  him.  The  verdict  in  the 
contest  was  against  the  validity  of  the  claimed  marriage.  On  the  trial 
in  the  action  in  ejectment  the  jury  found  in  favor  of  the  fact  of  mar- 
riage. This  court  — the  trial  judge  in  the  action  in  ejectment  having 
excluded  the  transcript  referred  to  — held  that  the  decree  upon  the 


778  OVERBY   V.   GORDON.  [CHAP.  XV. 

contest  was  competent  evidence  and  operated  an  estoppel  as  against 
ttie  lessor  of  the  plaintiff  who  was  a  party  to  the  contest,  but  that  the 
adjudication  did  not  affect  the  other  lessors,  who  were  not  parties  to 
such  contest.  Obviously,  the  decision  proceeded  upon  the  assumption 
that  as  the  Orphans'  Court  possessed  no  general  jurisdiction  over  the 
real  estate  of  a  decedent,  its  action  upon  the  application  for  grant  of 
letters,  regarded  as  a  proceeding  in  rem,  possessed  no  pi-obative  force 
in  contests  over  such  property.  This,  of  course,  in  nowise  impugned 
the  principle  that  all  parties  to  a  contest,  in  proceedings  in  a  probate 
court  preliminary  to  and  during  the  course  of  administration  upon  the 
estate  of  the  decedent,  upon  a  matter  within  the  jurisdiction  of  the 
court,  are  concluded  in  every  other  court  by  the  decision  rendered,  as 
to  tlie  facts  upon  which  such  decision  necessaril}'  proceeded.  Caujolle 
V.  Ferrie,  13  Wall.  465.  And  see  Butterfield  v.  Smith,  101  U.  S. 
570. 

(  We  are  of  the  opinion  that  the  De  Kalb  County  Court  possessed  the 
power  to  determine  the  question  of  domicil  of  the  decedent  for  the  pur- 
pose of  conclusive!}'  adjudicating  the  validity  within  the  State  of  Georgia 
of  a  grant  of  letters  of  administration,  but  that  it  did  not  possess  the 
power  to  conclusively  bind  all  the  world  as  to  the  fact  of  domicil,  by  a 
mere  finding  of  such  a  fact  in  a  proceeding  in  rem.\\.n  other  words,  pro- 
ceedings which  were  substantially  ex  parte  cannotoe  allowed  to  have 
greater  efficacy  than  would  a  solemn  contest  inter  partes,  which  would 
have  estopped  onl^^  actual  parties  to  such  a  contest  as  to  facts  which 
had  been  or  might  have  been  litigated  in  such  contest.  ^ 

Our  conclusion  being  that  the  adjudication  of  the  fact  of  domicil  in 
Georgia  made  in  the  grant  of  letters  by  the  De  Kalb  Count}'  Court, 
and  which  was  not  made  in  a  contest  inter  partes,  was  of  no  probative 
force  upon  the  question  of  domicil  in  a  contest  in  a  court  of  the  District 
of  Columbia  in  the  course  of  proceedings  for  the  administration  of 
assets  within  said  District,  it  results  that  the  Supreme  Court  of  the 
District  did  not  err  in  excluding  the  transcript  in  question,  whether 
tendered  as  evidence  conducing  to  establish  or  as  conclusively  fixing 
the  domicil  of  the  deceased.  And  this  conclusion  is  not  affected  in  the 
least  by  the  circumstance  that  on  the  trial  of  the  issue  as  to  domicil 
had  in  the  Supreme  Court  of  the  District  of  Columbia  it  was  claimed 
that  the  assets  within  the  District  of  Columbia  at  the  time  of  the  filing 
of  the  caveat  by  the  next  of  kin  had  been  thereafter,  without  the  sanc- 
tion of  the  court,  removed  from  the  District  of  Columbia  by  one  of  the 
caveators.  The  trial  court  properly  declined  to  rule  that  delivery  of 
such  assets  operated  to  protect  those  who  made  the  surrender,  as 
against  an  administrator  appointed  within  the  District,  subsequent,  it 
is  true,  to  such  delivery,  but  as  the  result  of  proceedings  for  the 
appointment  of  an  administrator  which  were  pending  in  a  proper  court 
of  the  District  at  the  time  of  the  delivery,  and  when  the  person  in 
whose  name  the  Georgia  letters  were  issued  was  a  party  to  the  pro- 
ceedings previously  instituted  and  then  pending  in  the  District.     Nor 


SECT.  III.]  OVERBY   V.    GOEDON.  779 

was  the  trial  court  required  to  determine  that  upon  proper  application 
to  the  Georgia  court  the  administrator  appointed  by  the  court  would 
not  be  ordered  to  deliver  up  the  assets  removed  by  him  from  the 
District. 

Allusion  has  been  made  to  an  act  of  Congioss  of  February  28,  1887, 
c.  281,  24  Stat.  431,  which  makes  it  lawful  for  an}-  person  or  persons 
to  whom  letters  testamentary  or  of  administration  may  be  granted  by 
proper  authority,  in  any  of  the  United  States  or  the  Territories  thereof, 
to  maintain  any  suit  or  action  and  to  prosecute  and  recover  any  claim 
in  the  District  of  Columbia,  in  the  same  manner  as  if  the  letters  testa- 
mentarj-  or  of  administration  had  been  granted  to  such  person  or  per- 
sons by  the  proper  authority  in  the  said  District.  We  do  not  construe 
that  statute,  however,  as  having  any  relation  to  a  case  of  the  kind  we 
are  now  considering.  In  other  words,  the  statute  cannot  in  reason  be 
interpreted  as  directing  that  where  a  proper  court  of  the  District  of 
Columbia  had  obtained  jurisdiction  by  proceedings  commenced  before 
it  for  administration  upon  propert}'  within  the  District,  it  should  be 
obliged  to  dismiss  such  proceedings  because  one  who  was  a  party 
before  it  chose,  whilst  issues  in  such  proceedings  were  pending  and 
undecided,  to  go  to  a  State  and  there  make  application  for  letters  of 
administration,  basing  such  application  upon  the  asserted  fact  that  the 
deceased  had  been  domiciled  in  such  State. 

Whilst  it  may  be  conceded  that,  in  consequence  of  the  statute,  as  a 
general  rule,  a  debtor  residing  in  the  District  of  Columbia,  of  a  deceased 
person,  may  be  protected  in  making  payment  to  an  administrator  ap- 
pointed in  another  jurisdiction,  the  asserted  domicil  of  the  deceased 
(Wilkins  v.  Ellett,  108  U.  S.  256),  this  does  not  make  it  necessarj^  for  us 
to  decide  that  the  payment  or  delivery  of  the  assets  in  the  District  of 
Columbia,  which  was  made  to  the  Georgia  administrator  after  the  com- 
mencement of  proceedings  for  the  administration  of  the  assets  within 
the  District  of  Columbia,  based  upon  the  ground  of  the  domicil  of  the 
deceased  having  been  in  said  District,  was  lawful.  To  determine  this 
question  would  involve  a  consideration  of  other  provisions  of  tbie 
statute,  and  as  to  whether  the  person  making  the  imyment  was  or 
not  to  be  charged  with  notice  of  the  then  pending  proceedings  in  the 
Supreme  Court  of  the  District,  which,  of  course,  were  matter  of  public 
record.  The  question,  however,  is  not  before  us  for  review,  and  we  do 
not,  therefore,  express  an  opinion  in  regard  thereto. 

Further,  in  the  light  of  the  decision  of  the  Supreme  Court  of  Georgia 
in  the  case  of  Thomas  v.  Morrisett,  76  Ga.  384,  and  an  analogous  de- 
cision by  the  Supreme  Court  of  Errors  of  Connecticut,  in  Willett's 
Appeal  from  Probate,  50  Conn.  330,  it  would  seem  altogether  probable 
that  the  De  Kalb  County  Court,  upon  application  made  to  it,  will  order 
its  appointee  to  surrender  to  the  administrator  appointed  in  the 
District  of  Columbia  the  assets  which  were  by  tlie  former  removed 
from  the  District  during  the  pendency  therein  of  the  proceedings  for 
administration. 

Affirm  e 


780  CASTEIQUE   V.   IMRIE.  [CHAP,   XV. 

SECTION   IV. 

THE    EFFECT    OF    A    JUDGMENT    ON    PROPERTT. 


HUGHES   V.   CORNELIUS. 
King's  Bench.     1680. 

[Reported  2  Shower,  232.] 

Trover  brought  for  a  ship  and  goods,  and  on  a  special  verdict  there 
is  found  a  sentence  in  the  Admiralty  Court  in  France,  which  was  with 
the  defendant. 

And  now^per  Curktm  agreed  and  adjudged,  that  as  we  are  to  take 
notice  of  a  sentence  in  the  admiralty  here,  so  ought  we  of  those  abroad 
in  other  nations,  and  we  must  not  set  them  at  large  again,  for  other- 
wise the  merchants  would  be  in  a  pleasant  condition  ;  for  suppose  a 
decree  here  in  the  Exchequer,  and  the  goods  happen  to  be  carried  into 
another  nation,  should  the  courts  abroad  unravel  this?  It  is  but  agree- 
able with  the  law  of  nations  that  we  should  take  notice  and  approve  of 
the  laws  of  their  countries  in  such  particulars.  If  you  are  aggrieved 
you  must  apply  yourself  to  the  king  and  council ;  it  being  a  matter  of 
government  he  will  recommend  it  to  his  liege  ambassador  if  he  see 
cause;  and  if  not  remedied,  he  may  grant  letters  of  marque  and 
reprisal. 

And  this  case  was  so  resolved  by  all  tlie  Court  upon  solemn  debate ; 
this  being  of  an  English  ship  taken  by  the  French,  and  as  a  Dutch  ship 
in  time  of  war  between  the  Dutch  and  the  French, 

Judgment  for  the  defendants. 


CASTRIQUE   V.   TIMRIE. 

House  of  Lords.     1870. 

\Re'ported  Law  Re}mrts,  4  House  of  Lords,  414.] 

The  ship  "Ann  Martin,"  of  Liverpool,  Benson,  master,  was  supplied 
with  necessaries  at  Melbourne  by  Messrs.  Levien  &  Stenetz.  Benson 
drew  a  bill  in  payment  on  Clans,  then  the  owner,  for  the  sum  of  £601 
IGs.  6  J.    Claus  became  bankrupt,  and  the  bill  was  dishonored  :  the  ves- 


SECT.  IV.]  CASTRIQUE    V.   IMUIE.  781 

sel  had  meanwhile  been  transferred  to  Castrique,  and  the  bill  had  been 
indorsed  to  Messrs.  Trotteaiix  &  Co.,  of  Havre.  The  vessel  being  in 
Havre,  Messrs.  Trotteaiix  &  Co.  commenced  in  the  Tribunal  of  Com- 
merce there,  a  suit  against  Benson  on  the  bill.  Benson  was  cited  and 
appeared,  but  did  not  defend  the  suit.  Judgment  was  given  against 
Benson  as  master  "and  by  privilege  on  tiiat  vessel "  to  pa}-  the 
amount.  The  ship  was  seized  upon  the  judgment,  but  could  not  be 
sold  till  the  judgment  was  ratified  by  the  Civil  Tribunal  of  the  same 
district.  That  court  confirmed  the  judgment,  and,  after  hearing  the 
parties  interested  and  receiving  evidence  of  the  law  of  England,  refused 
to  modify  its  action.  The  Court  of  Appeal  of  Rouen  affirmed  the 
action  of  the  Civil  Tribunal  of  Havre.  A  sale  of  the  vessel  was  made 
under  order  of  court,  and  the  defendant,  an  Englishman,  became  the 
purchaser.  Upon  his  bringing  the  vessel  to  England,  Castrique 
brought  an  action  in  the  Court  of  Common  Pleas  to  recover  it,  on  the 
ground  that  the  sale  in  France  was  illegal  and  void  as  against  his 
earlier  title.  The  Court  of  Common  Pleas  gave  judgment  for  Cas- 
trique ;  this  was  reversed  in  the  Court  of  Exchequer  Chamber.  The 
case  was  then  brought  up  to  this  House  on  error.  The  judges  were 
summoned.^ 

Blackburn,  J.  My  Lords,  I  have  the  honor  to  deliver  the  joint 
opinion  of  my  Brothers  Bramwell,  Mellor,  Brett,  Cleasby,  and 
myself.^  .  .  . 

What  were  the  nature  and  effect  of  the  proceedings  in  France  — 
what  jurisdiction  the  courts  there  had?  and  what  the  effect  of  their 
determinations  reall}^  was?  are  all  questions  depending  on  the  French 
law,  and  it  must  be  ascertained  as  a  fact  what  that  French  law  is. 
"When  once  that  fact  is  ascertained,  it  becomes  a  question  of  English 
law  to  determine  what  eff'ect  is  to  be  given  to  it  in  an  English  court. 

In  the  present  case  the  parties  at  the  trial  agreed  upon  a  statement 
of  the  facts,  and  gave  the  court  authority  to  draw  inferences  from 
them  ;  but,  unfortunately,  they  have  stated  the  facts  as  to  the  French 
law  very  imperfectl}',  and  the  result  has  been  that  the  Court  of  Com- 
mon picas  has  drawn  one  inference  as  to  the  French  law,  and  the 
Court  of  Exchequer  Chamber  has  drawn  another.  It  is  very  possible 
that  a  French  lawyer  may  justly  say  that  neither  is  right ;  it  is  quite 
certain  that  both  cannot  be.  It  is  now  for  your  Lordships  to  deter- 
mine what  the  proper  inference  is,  and  on  that  point  we  must  express 
our  opinion.  It  is  quite  possible  that  the  inference  we  draw  may  not 
be  the  correct  one,  but  we  apprehend  that  all  that  can  be  required  of  a 
tribunal  adjudicating  on  a  question  of  foreign  law  is  to  receive  and  con- 
sider all  the  evidence  as  to  it  which  is  available,  and  bona  fide  to 
determine  on  that,  as  well  as  it  can,  what  the  foreign  law  is.  If  from 
the  imperfect  evidence  produced  before  it,  or  its  misapprehension  of  the 

1  This  statement  of  facts  is  condensed  from  that  of  the  Reporter.  —  Ed. 

2  Part  of  this  advisory  opinion  is  omitted.  Keating,  J.,  delivered  an  advisory  opin- 
ion concurring  in  result.  —  Ed. 


782  CASTKIQUE    V.    IMRIE.  [CHAP.  XV. 

effect  of  that  evidence,  a  mistake  is  made,  it  is  much  to  be  lamented, 
but  the  tribunal  is  free  from  blame. 

We  think  that  some  points  are  clear.  When  a  tribunal,  no  matter 
whether  in  England  or  a  foreign  country,  has  to  determine  between 
two  parties,  and  between  them  only,  the  decision  of  that  tribunal, 
though  in  general  binding  between  the  parties  and  privies,  does  not 
affect  the  rights  of  third  parties,  and  if  in  execution  of  the  judgment 
of  such  a  tribunal  process  issues  against  the  property  of  one  of  the 
litigants,  and  some  particular  tiling  is  sold  as  being  his  property,  there 
is  nothing  to  prevent  any  third  person  setting  up  his  claim  to  that 
thing,  for  the  tribunal  neither  had  jurisdiction  to  determine,  nor  did 
determine,  anything  more  than  that  the  litigant's  property  should  be 
sold,  and  did  not  do  more  than  sell  the  litigant's  interest,  if  any,  in 
the  thing.  All  proceedings  in  the  courts  of  common  law  in  England  are 
of  this  nature,  and  it  is  every  day's  experience  that  where  tlie  sheriff, 
under  Vi  fieri  facias  against  A.,  has  sold  a  particular  chattel,  B.  may  set 
up  his  claim  to  that  chattel  either  against  the  sheriff  or  the  purchaser 
from  the  sheriff.  And  if  this  may  be  done  in  the  courts  of  the  country 
in  which  the  judgment  was  pronounced,  it  follows  of  course  that  it  may- 
be done  in  a  foreign  country.  But  when  the  tribunal  has  jurisdiction 
to  determine  not  merely  on  the  rights  of  the  parties,  but  also  on  the 
disposition  of  the  thing,  and  does  in  the  exercise  of  that  jurisdic- 
tion direct  that  the  thing,  and  not  merely  the  interest  of  any  particu- 
lar party  in  it,  be  sold  or  transferred,  the  case  is  very  different. 

It  IS  not  essential  that  there  should  be  an  actual  adjudication  on  the 
status  of  the  thing.  Our  Courts  of  Admiralty,  when  property  is 
attached  and  in  their  hands,  on  a  proper  case  being  shown  tliat  it  is 
perishable,  order  that  it  shall  be  sold  and  the  proceeds  paid  into  court 
to  abide  the  event  of  the  litigation.  It  is  almost  essential  to  justice 
that  such  a  power  should  exist  in  every  case  where  property,  at  all 
events  perishable  property,  is  detained. 

In  a  recent  case  of  Stringer  r.  English  and  Scottish  Marine  Insur- 
ance Company,  in  the  Queen's  Bench,  Law  Rep.  4  Q.  B.  676,  it 
appeared  that  the  American  Prize  Court,  pendente  lite^  ordered  a 
valuable  cargo,  which  was  claimed  as  prize,  to  be  sold,  and  that  not 
only  without  any  adjudication  that  it  was  a  prize,  but  although  the 
decision  of  tlie  court  below  had  been  against  the  captors,  and  that 
decision  was  ultimately  affirmed  on  appeal.  We  apprehend  that  it  is 
clear  that  in  all  such  cases  courts  sitting  under  the  same  authority 
must  recognize  the  title  of  the  purcliaser  as  valid.  In  Story  on  the 
Conflict  of  Laws,  §  592,  it  is  said  that  the  principle  that  the  judg- 
ment is  conclusive  "is  applied  to  all  proceedings  in  rem  as  to  mov- 
able property  within  the  jurisdiction  of  the  court  pronouncing  the 
judgment.  Whatever  it  settles  as  to  the  right  or  title,  or  whatever 
disposition  it  makes  of  the  property  by  sale,  revendication,  transfer, 
or  other  act.  will  be  held  valid  in  every  other  country  where  the  ques- 
tion comes  directly  or  indirectly  in  judgment  before  any  other  foreign 


SECT.  IV.]  CASTEIQUE   V.    IMRIE.  783 

tribunal.  This  is  verj'  familiarl}'  known  in  the  cases  of  proceedings 
ill  rem  in  foreign  Courts  of  Admiralty,  whether  they  be  causes  of  prize 
or  bottomr}',  or  salvage  or  forfeiture,  of  which  such  courts  have  a 
rightful  jurisdiction  founded  in  the  actual  or  constructive  possession  of 
the  subject-matter." 

We  may  observe  that  the  words  as  to  an  action  being  in  rein  or 
in  personam^  and  the  common  statement  that  tlie  one  is  binding  on 
third  persons  and  the  other  not,  are  apt  to  be  used  by  English  law3ers 
without  attaching  any  very  definite  meaning  to  those  phrases.  We 
apprehend  the  true  principle  to  be  that  indicated  in  the  last  few  words 
quoted  from  Story.  We  think  the  inquiry  is,  first,  whether  the  subject- 
matter  was  so  situated  as  to  be  within  the  lawful  control  of  the  State 
under  the  authority  of  which  the  court  sits  ;  and,  secondlj",  whether 
the  sovereign  authority  of  that  State  has  conferred  on  the  court  juris- 
diction to  decide  as  to  the  disposition  of  the  thing,  and  the  court  has 
acted  within  its  jurisdiction.  If  these  conditions  are  fulfilled,  the  ad- 
judication is  conclusive  against  all  the  world.   .   .   . 

Lord  Hatherley,  Lord  Chancellor.^  The  question  which  really 
arises  before  us  is  this,  whether  or  not  the  judgment  of  the  French 
court,  and  the  consequent  sale  had  in  pursuance  of  that  judgment,  must 
be  treated  as  having  changed  the  property  of  the  ship.  The  ship  was 
bought  at  that  auction  by  a  person  who  was  a  British  subject,  and  who 
came  here  and  registered  himself  as  the  owner  of  the  vessel,  and  is  now 
represented  by  the  defendant.  The  question  is,  as  to  the  property  of 
the  ship  as  between  Castvique  and  the  defendant. 

We  have  been  assisted  with  the  opinions  of  the  learned  judges  in 
this  case,  and  I  entirely  concur  in  the  conclusion  at  which  they  have 
arrived.  It  appears  to  me,  in  the  first  place,  desirable  to  consider 
whether  this  judgment  must  be  taken  as  a  judgment  by  the  French 
court  in  rem,  or  whether  it  is  to  be  taken  as  a  judgment  purporting 
onlv  to  deal  with  the  interest  in  the  vessel,  whatever  that  interest 
might  be,  of  Benson,  who  was  the  debtor  in  the  action  on  the  bill,  and 
as  giving  no  further  or  other  right  than  such  interest  as  Benson  had. 
As  it  was  stated  by  the  learned  judges,  we  are  familiar  in  our  law  with 
that  distinction  ;  we  are  familiar  with  the  course  taken  by  the  Court 
of  Admiralty  in  proceedings  against  a  ship,  selling  a  ship,  and  giving 
a  title  against  all  third  persons  who  become  purchasers  under  a  decree 
of  that  court ;  we  are  familiar  also  with  the  course  taken  by  our  own 
courts  of  law  in  decreeing  judgment  of  any  property  of  a  debtor  taken 
by  levy  upon  his  goods,  in  which  case  the  interest  of  the  debtor  in 
the  chattel  is  sold,  and  that  interest  alone,  and  no  further  or  other 
right  than  that  possessed  by  the  debtor,  can  be  transferred  to  persons 
purchasing  under  that  sale.  In  other  words,  they  purchase  simply  the 
interest  of  the  debtor  in  that  chattel. 

1  Part  of  this  opinion,  and  the  concurring  opinions  of  Lords  Chelmsford  and 
CoLONSAY,  are  omitted. —  Ed. 


784  CASTRIQUE    V.    IMRIE.  [CHAP.  XY. 

If  we  look  at  the  course  of  proceedings  to  see  what  were  the  intent 
and  purpose  and  duty  of  the  French  courts,  and  if  we  ask  did  they 
proceed  in  this  course  which  they  took  in  directing  the  sale  of  the  ves- 
sel as  against  the  vessel  itself,  we  find  that  there  has  been  a  difference 
of  opinion  upon  that  point  between  the  Court  of  Common  Pleas  and 
the  Court  of  Exchequer  Chamber.  The  Court  of  Common  Pleas 
thought  that  it  was  not  a  proceeding  against  the  ship  itself,  but  simply 
against  such  interest  as  the  debtor  had  therein,  wliile  the  Court  of 
Exchequer  Chamber  came  to  the  conclusion  that  it  was  a  proceeding 
against  the  ship  itself.  Now,  1  entirely  concur  in  the  remarks  of  the 
learned  judges  who  have  assisted  us  in  this  case,  that,  unfortunately, 
tlie  case  being  one  of  foreign  law,  which  we  must  consider  as  a  fact 
laid  before  us,  it  has  not  been  stated  in  the  special  case,  with  all  the 
clearness  which  would  have  been  desirable,  what  that  law  is.  But 
wliat  is  there  stated  it  appears  to  me  is  sufficient  to  indicate  upon  the 
whole  the  course  taken  by  the  French  courts  and  the  grounds  of  their 
proceeding.  In  the  first  place,  it  was  a  proceeding  against  Benson 
and  the  ship  wliich  originated  the  matter.  That  being  so,  1  think 
that  it  would  be  very  difficult  to  say  that  a  proceeding  vi  rem  was 
not  one  of  the  matters  contemplated  in  the  original  judgment.  The 
judgment  of  the  Tribunal  of  Commerce  was  a  judgment  against  Ben- 
son. He  had  desired  not  to  be  made  personally  liable,  as  tiie  expres- 
sion here  is,  in  respect  of  this  judgment,  and  it  was  given  against 
him  "  by  privilege  upon  the  ship."  The  ship  was  then  dn-ected  to  be 
sold.  A  good  deal  of  argument  turned  upon  that  expression,  "by 
privilege  upon  the  ship."  The  case  was  argued  extremely  ably  by 
Mr.  Matthews  at  your  Lordships'  bar.  He  put  the  case  to  us  thus: 
What  was  meant  was  no  more  than  this,  that  when  the  ship  should  be 
sold  the  captain,  by  virtue  of  the  French  law,  would  be  a  privileged 
creditor,  and  would  be  entitled  to  be  paid  out  of  the  first  proceeds  of 
the  sale,  but  that  it  did  not  necessarily  follow  from  this  circumstance 
that  the  sale  was  ordered  to  be  made  as  against  all  persons  having  an 
interest  in  the  ship.  He  put  it  in  this  way,  that  it  might  be  treated 
as  if  the  court  had  regarded  the  wliole  matter  thus:  that  he,  Benson, 
would  have  a  certain  amount  of  interest  in  the  ship  by  virtue  of  such 
privilege  as  he  might  have,  and  the  court  might  merely  mean  to  sell  all 
such  amount  of  interest  as  Benson  had,  and  therefore  to  dispose  only 
of  those  rights  which  he  possessed  in  priority  to  others,  and  to  the 
amount  which  might  be  due  to  him  as  captain  in  respect  of  any  claim 
he  liad  in  that  capacity  upon  the  ship;  in  other  words,  to  sell  exactly 
what  was  due  to  Benson  as  captain,  and  not  to  sell  the  ship,  per  se, 
for  any  other  purpose  whatever. 

But^  as  was  well  observed  by  the  learned  judges,  in  the  first  place 
this  privilege  could  only  arise  after  the  sale  of  the  shii)  had  taken  place 
to  give  him  a  priority  over  other  creditors  interested  in  disi)()sing  of 
the'vessel.  But  further  than  that,  regard  being  had  to  the  original 
proceeding,  being  a  proceeding  against  Benson  and  the  ship,  and  Ben- 


SECT.  IV.]  CASTRIQUE    V.   IMIUE.  785 

son  himself  being  excluded  from  any  personal  liability,  and  the  judg- 
ment against  him  being  by  privilege  upon  the  ship,  it  does  appear  to 
me  that  the  word  "  privilege,"  as  used  here,  is  used  much  more  in  the 
sense  in  which  it  is  used  by  Lord  Tenterden  in  his  work  upon  ship- 
ping, of  a  charge  upon  a  vessel  which  the  person  is  entitled  to  realize 
by  sale,  than  in  the  sense  of  saying  simply  that  amongst  all  the  several 
persons  who  may  have  claims  when  the  ship  comes  to  be  sold,  Benson 
is  to  stand  in  a  favored  position.  ^^In  other  words,  the  French  court 
intended  by  the  proceeding  taken  to  adjudge  the  sale  of  the  vessel  in 
order  to  satisfy  this  privileged 

But,  beyond  that,  I  think  the  case  becomes  somewhat  clearer  when 
it  is  carried  to  the  Civil  Tribunal,  which  was  called  upon  to  affirm  the 
judgment  of  the  Tribunal  of  Commerce,  and  give  efficacy  to  the  dealing 
with  the  ship.  What  course  did  the  Civil  Tribunal  take?  It  sum- 
moned all  who  were  supposed  to  be.  the  owners  of  the  ship.  The 
judges  of  that  court  only  knew  of  Claus  and  Claus's  assignee  —  they 
did  not  know  any  of  the  mortgagees  whose  titles  did  not  appear  upon 
the  ship's  papers ;  at  all  events,  they  considered,  if  anything  was  said 
about  them,  that  they  could  pay  no  attention  to  persons  of  whom  they 
coukl  have  no  knowledge  except  through  the  medium  of  the  ship's 
papers.  For  what  purpose  did  they  call  Claus  and  his  assignee?  For 
the  purpose  of  making  them  liable  upon  the  bill,  not  because  Claus  had 
accepted  it,  but  only  because,  being  interested  in  the  thing  they  were 
about  to  sell,  they  thought  it  right  that  Claus  and  his  assignee  should 
be  present. 

Therefore,  upon  the  whole  proceeding,  taking  first  the  proceeding 
against  Benson  and  the  ship,  next,  the  detainer  of  the  vessel  by  the 
Tribunal  of  Commerce  for  the  purpose  of  the  sale  being  affirmed  by 
the  Superior  Court,  and  then  the  Superior  Court  when  it  arrives  at  the 
question  of  sale  or  no  sale,  taking  care  to  summon  those  whom  alone 
it  could  recognize  as  owners,  I  think  there  can  be  no  doubt  that  the 
judgment  of  the  court  was  intended  to  be  a  judgment  in  rem,  and 
therefore  the  court  intended  to  do  that  which  by  the  French  law  it  did, 
namely,  to  transfer  the  ownership  in  the  vessel. 

That  being  so,  the  only  remaining  point  is  this :  it  is  said  that  the 
French  judges  decided  against  our  English  law ;  that  the  effect  of  our 
law  was  laid  before  them,  and  that  they  disregarded  it  and  determinecl 
the  case  contrary  to  what  the  law  of  this  country  would  be.  It  is  said 
tliat  the  law  of  the  flag  should  have  governed  the  decision  of  the  French 
courts  with  reference  to  this  vessel,  and  therefore,  the  courts  having 
come  to  an  erroneous  conclusion,  the  judgment  that  they  erroneously 
gave  and  so  acted  upon  would  not  here  confer  a  title  upon  those  who 
in  France  undoubtedly,  under  that  judgment,  did  acquire  it. 

Now,  my  Lords,  without  expressing  any  opinion  (for  I  purposely 
wish  to  avoid  doing  so)  with  reference  to  a  decision  of  my  own  which 
has  been  cited,  in  the  case  of  Simpson  v.  Fogo,  1  Jo.  &  H.  18  ;  1  H.  & 
M.  195,  as  to  what  might  be  done  in  the  case  of  a  court  wilfully  deter- 

60 


786  CASTRIQUE    V.   IMRIE.  [CHAP.  XV. 

mining  that  it  will  not,  according  to  the  usual  comit}',  recognize  the 
law  of  other  nations  when  clearly  and  plainly  put  before  it,  without 
saying  anything  as  to  what  would  justify  the  courts  in  our  own  country 
in  hesitating  to  give  effect  to  a  foreign  judgment  if  obtained  by  fraud 
or  misrepresentation,  it  is  enough  for  me  to  say  upon  the  present  occa- 
sion, that,  in  this  case,  the  whole  of  the  facts  appear  to  have  been  in- 
quired  into  by  the  FrelTch  courts  ^judicially,  honestly,  and  with  the 
intention  to  arrive  at  the  right  conclusion,  and  having  heara  tne  lacts 
as  stated  before  theni  f  {ipy  p-\uie  to  a  conclusion  which  justitied  tnem  In 
France  in  deciding  as  thev  did  decide.^  That  decision  conhinied  tii'e 
title  b}'  sale  to  the  person  who  became  the  purchaser  at  the  sale.  Ac- 
cording to  the  law  of  France  that  title  could  not  be  thereafter  disputed 
or  disturbed,  the  court  at  Rouen  being  the  highest  court  having  juris- 
diction in  the  matter.   \ 

That  being  so,  there  being  neither  a  case  of  refusal  to  attend  or 
listen  to  anything  that  might  be  said  to  them  with  reference  to  our  own 
law,  nor  to  adopt  that  as  the  ground  of  their  conclusion,  and  there 
being  no  case,  as  far  as  I  know,  of  any  fraudulent  representation  or 
concealment  with  reference  to  any  facts  in  the  case,  and  the  decision 
having  been  come  to  and  pronounced,  not,  as  in  one  of  the  cases  which 
was  cited,  in  the  absence  of  the  parties,  but  in  Castrique's  own  suit, 
where  he  had  every  opportunity  of  bringing  forward  his  own  case,  the 
decision  cannot  be  complained  of  as  one  contrary  to  justice  through  its 
being  pronounced  in  the  absence,  from  want  of  citation,  of  any  of  the 
parties  interested,  I  therefore  think  we  are  bound  to  give  effect  to  the 
conclusion  arrived  at  b}'  the  French  court,  and  to  the  title  derived 
through  the  medium  of  that  conclusion,  and  that  the  court  of  Ex- 
chequer Chamber  was  right  in  the  decision  to  which  it  came.  And, 
therefore,  I  have  to  submit  to  j'our  Lordships  that  the  decision  of  the 
Court  of  P^xchequer  Chamber  ought  to  be  affirmed. 

Judgnieiit  of  Court  of  Exchequer  Chamber  affirmed. 


SECT.  I.]  DE   BRIMONT   V.   PENNIMAN.  787 


CHAPTER   XVI. 
OBLIGATIONS. 


SECTION    L 

PENAL    OBLIGATIONS. 


DE  BRIMONT  v.   PENNIMAN. 
Circuit  Court  of  the  United  States,  So.  Dist.  New  York.     1878. 

[ReiJorted  10  Blatchford,  436.] 

WooDRDFF,  J.     This  is  an  action  of  debt.     The  declaration  contains 
two  counts.     The  first  is  founded  on  an  alleged  judgment  or  decree 
pronounced  in  the  then  Empire  of  France  ;  the  other  count  is  debt  on 
simple  contract,  for  interest  alleged  to  be  due  to  the  plaintiff,  for  the 
forbearance  of  moneys  due  and  owing  by  the  defendants  to  the  plain- 
tiff.    The  first  count  only  is  demurred  to.     That  count  alleges,  that  the 
plaintiff  is  an  alien  and  a  citizen  of  the  French  Republic,  and  that  the 
defendants  are  citizens  of  the  United  States  and  of  the  State  of  New 
York  ;  that,  on  the  16th  of  March,  1868,  at  Paris,  in  the  then  Empire 
of  France,  the  plaintiflJ"  intermarried  with  the  daughter  of  the  defend- 
ants ;  that  a  child  of  the  marriage  was  born,  who  is  still  living;  and 
that,  on  the  7th  of  February,  1869,  such  daughter,   (the  wife  of  the 
plaintiff,)   died.     The  declaration  then  sets  out  certain  articles  of  the 
Code  Civil  of  France,  which  provide  that  children  must  make  an  al- 
lowance to  their  father  and  mother,  and  other  ancestors,  who  are  in 
need ;  that  sons-in-law  and  daughters-in-law  must,  also,  in  like  circum- 
stances, make  an  allowance  to  their  fathers-in-law  and  mothers-in-law, 
but  this  obligation  ceases,   first,  when   the  mother-in-law  contracts  a 
new  marriage,  and  second,  when  that  one  of  the  married  couple  through 
whom  the  relation  of  affinit}-  exists  is  dead  and  the  children  born  of 
such   couple  are  also  dead ;    that   the  obligations   springing  from   the 
foregoing  provisions  are  reciprocal ;  and  that  an  allowance  is  only  to 
be  granted  in  proportion  to  the  necessities  of  him  who  claims,  and  to  the 
means  of  him  who  is  bound  to  pay.     It  is  next  averred,  that,  at  and 
prior  to  the  said  intermarriage,  and  at  the  time  of  the  rendition  of  the 
judgment  and  decree  next  mentioned,  and  subsequently  to  such  decree, 
the  defendants  were  residents  of  the  Empire  of  France,  had  the  benefit 
of  its  laws,  and  owed  to  it  a  temporary  allegiance  ;  that,  on  the  14th 
of  August,  1869,  the  Civil  Tribunal,  (particularly  mentioned.)  at  Paris, 
rendered  and  pronounced  judgment,  in  an  action  there  pending,  wherein 
the  said  plaintiff  was  plaintiff  and  the  said  defendants  were  defendants, 


788  DE    BRIMONT    V.    PENNIMAN.  [CHAP.    XVI. 

brought  by  the  plaintiff,  to  obtain  an  allowance  from  the  defendants, 
under  the  said  articles  of  the  Code  Civil ;  that  the  defendants,  jointly 
and  several!}-,  pay  to  him  18.000  francs  per  year,  in  equal  monthly  pay- 
ments in  advance,  such  payments  to  be  made  from  the  time  that  such 
allowance  was  first  demanded,  and  should  be  6,000  francs  for  the  use  of 
said  plaintiff,  and  12,000  francs  for  the  use  of  the  said  child  of  the  plain- 
tiff and  of  said  daughter  of  the  defendants  ;  that  the  defendants  were 
both  duly  served  with  process  in  said  action  and  appeared  therein  ;  that 
the  said  Civil  Tribunal  was  a  court  of  the  P^mpire  of  France,  and  had 
jurisdiction  of  the  subject-matter  of  the  action  and  of  the  parties  ;  that 
the  defendants  appealed  from  tlie  said  judgment  to  the  Court  Imperial  of 
Paris ;  that  such  appeal  was  there  prosecuted  by  the  plaintiff  and  the 
defendants,  and,  on  the  5th  of  May,  1870,  such  appellate  court  adjudged 
and  decreed,  that  the  before-mentioned  judgment  be  affirmed  in  respect 
of  the  right  of  the  plaintiff  to  an  allowance,  and  in  respect  of  the  amount, 
to  wit,  18,000  francs  per  year,  and  of  the  appropriation  thereof  by  the 
plaintiff,  to  wit,  6,000  francs  to  the  use  of  the  plaintiff  and  12,000 
thereof  to  the  use  of  the  said  child,  and  in  respect  of  the  times  and 
manner  in  which  it  should  be  paid  to  the  plaintiff,  to  wit,  in  equal 
monthly  payments,  in  advance,  and  did  adjudge  and  decree,  that  the 
defendants,  jointly  and  severally',  pay  to  the  plaintiff  the  said  sum,  and 
pay  the  same  from  the  day  of  the  decease  of  their  said  daughter,  Feb- 
ruary 7,  1869,  as  appears,  etc.,  by  the  records  and  proceedings  of 
said  court,  now  remaining  of  record  ;  that  the  said  judgment  and  de- 
cree of  the  Court  Imperial  is  final  and  conclusive,  and  is  in  full  force, 
not  reversed  or  anulled  or  satisfied,  etc. ;  that  such  court  is  a  court  of 
general  jurisdiction,  and  had  jurisdiction  of  the  subject-matter  and 
of  the  parties  ;  and  that  the  plaintiff  has  not  yet  obtained  satisfaction  of 
the  said  judgment,  whereby  an  action  hath  accrued  to  him  to  have  and 
demand  of  the  defendants,  jointly  and  severally,  the  sum  of  S10,200, 
being  the  value,  in  currency  of  the  United  States,  of  the  sum  of  48,000 
francs,  in  which  said  last-mentioned  sum  the  defendants  arc,  jointly  and 
severally,  indebted  to  the  plaintiff,  by  reason  of  the  said  judgment,  for 
the  time  beginning  the  7tli  of  February,  1869,  and  ending  the  7th  of 
November,  1871. 

The  defendant  James  F.  Penniman  demurs  to  this  count,  upon  vari- 
ous grounds,  which  I  do  not  think  it  necessary  to  enumerate.  They 
were  urged  on  the  argument,  and,  by  not  noticing  many  of  them  fur- 
ther, I  am  not  to  be  deemed  to  affirm  the  sufficiency  of  the  declaration 
in  respect  thereto.  It  is  sufficient  that  the  principal  question  is  de- 
cided. That  question  is,  whether  an  action  of  debt  will  lie  in  this 
court,  upon  such  a  decree  of  a  court  in  France,  made  against  citizens 
of  the  United  States,  husband  and  wife,  temporarily  resident  in  that 
Empire? 

It  may  not  be  irrelevant  to  state,  that,  besides  the  articles  of  the 
French  Code  inserted  in  the  declaration,  the  counsel  for  the  plaintiff 
admitted,  on  the  argument,  and  he  has  stated  on  his  brief,  that  it  is 


SECT.   I.]  DE   BRIMONT   V.    PENNIMAN.  789 

provided,  by  other  articles  of  that  Code,  that  the  duty  to  make  the  al- 
lowance which  the  decree  in  question  provides,  ceases  whenever  the 
claimant  obtains  a  fortune  sufficient  for  his  own  support,  or  the  part}'' 
by  whom  the  payment  is  to  be  made  becomes  unable  to  pay,  or  can- 
not pa}'  without  withdrawing  means  which  are  required  for  his  own 
necessities. 

The  question  is  novel.  No  case  has  been  cited  by  counsel  in  which 
a  foreign  judgment  of  such  a  nature  has  been  the  subject  of  an  action 
in  this  country  or  in  England  ;  and  no  such  case  has  fallen  under  my 
observation.  Cases  are  numerous  in  which  foreign  judgments  for  the 
recovery  of  a  definite  sum  of  money  have  been  sued  upon  ;  and  the 
question  has  been  largely  discussed,  whether  such  judgments  are  con- 
clusive, or  are  merely  prima  jfacie,  evidence  of  the  debt  which  they 
award,  and  whether,  and  to  what  extent,  the  subject-matter  is  open  to 
inquiry  and  proofs,  on  the  original  merits.  Those  cases  are  not  con- 
troverted by  the  counsel  for  the  defendant,  but  they  are  deemed  not 
to  apply  to  such  a  decree  as  is  set  out  in  this  declaration.  Cases  are 
also  numerous  in  which  the  force  and  effect  of  judgments  and  decrees 
in  the  courts  of  one  of  the  States  of  the  United  States  are  under  con- 
sideration in  the  courts  of  other  of  the  States,  or  in  the  federal  courts. 
Those  cases  are  not  deemed  to  apply  to  the  present,  because  the  Con- 
stitution of  the  United  States  operates,  as  between  the  States,  to  give 
them  an  efficiency  not  due  to  a  foreign  judgment  or  decree. 

In  determining  the  precise  question,  whether,  upon  the  facts  stated 
in  the  declaration,  the  plaintiff  shows  a  cause  of  action,  it  may  not  be 
material  to  decide  whether  such  a  judgment  is,  in  this  court,  to  be  re- 
garded as  conclusive,  or  only  prima  facie,  evidence  of  the  indebtedness 
claimed  by  the  plaintiff;  for,  if  it  be  either,  then,  in  connection  with 
the  allegations  showing  the  law  and  the  relationship  of  the  parties,  a 
demurrer  founded  in  denial  of  legal  liability  could  not,  probably,  be 
sustained.  The  cases,  therefore,  which  discuss  that  distinction  need 
not  be  considered. 

The  broad  question,  whether  a  citizen  of  the  United  States,  whose 
dfUTPJTtprjrnarries  in  Franco-  pnn  be  prosecuted  here  upon  a  decree  o? 
a  French  court,  requiring  him  and  his  wife  to  pay  an  annuity  for  the 
support  of  their  son-in-law,  is  prior  to  the  inquiry  last  above  referred 
^.  "The  sutyect  pertains  to  the  domestic  relations  of  our  own  citizens, 
and  the  duties  and  obligations  resulting  therefrom  ;  and  the  decree  in 
question  proceeds  upon  the  declaration  of  an  obligation  not  in  conform- 
ity with  our  laws,  not  known  to  the  common  law,  and  upon  the  con- 
tinuance of  the  obligation  itself  after  the  relationship  out  of  which  it 
is  deemed  to  have  arisen  has  ceased  by  the  death  of  the  person  through 
whom  the  affinity  was  traced.  The  nearest  analogy  to  a  decree  of  the  \ 
nature  in  question,  to  which  ray  attention  is  called,  is  a  decree  for  ali- 
mony, where  a  divorce,  total  or  partial,  has  been  granted;  but  the  only 
cases  in  which  such  a  decree  has  been  held  to  support  an  action  in 
another  jurisdiction  are  under  the  influence  of  the  Constitution  of  the 


"790  DE    BRIMONT   V.   PENNIMAN.  [CHAP.    XVI. 

United  States,  and,  bj-  force  of  that  Constitution,  it  was  held  that  a 
suit  would  lie,  in  a  Court  of  Chancery,  to  compel  the  performance  of 
the  decree.     Barber  v.  Barber,  21  How.  58.2. 

It  is  not  irrelevant  to  a  consideration  of  the  nature  of  the  decree  in 
question,  to  sa}',  that  it  does  not  proceed  upon  the  rule  of  obligation 
recognized  by  all  civilized  nations,  that  the  parent  shall  support  his  chil- 
dren during  minority,  which  involves,  also,  the  correlative  right  to  the 
services  of  those  children  while  thus  supported.  Such  an  obligation 
has  no  relation  to  the  case  under  consideration.  Wliatever  obligation 
or  dut}'  lies  at  the  foundation  of  the  claim  of  this  plaintiff  is  the  crea- 
ture of  positive  statute,  framed  for  the  peojile  of  France,  to  regulate 
their  domestic  concerns,  protect  the  public,  and  guard  against  pauper- 
ism and  its  evils.  Statutes  in  some  respects  similar  are  found  in  Eng- 
"land,  and  in  most,  if  not  all  of  the  States  of  this  countr}'.  The  duty 
of  parents  and  grandparants,  and,  reciprocally,  of  children  and  grand- 
children when  of  sufficient  ability,  to  piovide  for  the  necessarj-  support 
of  those  relatives,  and  prevent  their  becoming  a  charge  to  the  public, 
is  declared  and  is  enforced.  Such  regulations  are  local  in  their  nature 
and  in  tlieir  application,  and  so  are.  the  orders  for  their  enforcement. 
They  are  a  part  of  a  local  sj'stem,  to  provide  for  paupers,  and  to  re- 
lieve the  public  from  their  maintenance,  when  they  have  relatives 
within  certain  designated  degrees,  who  are  of  abilitv  to  support  them. 
Such  orders  are  subject  to  modification  and  adjustment,  as  circum- 
stances may  require,  in  the  States  and  tribunals  wherein  they  are 
made.  Apart  from  questions  growing  out  of  the  Federal  Constitution, 
they  can  only  be  enforced  in  the  States  where  they  are  made.  Orders 
of  filiation  are  of  a  similar  character.  Thev  are  mainly  for  the  protec- 
tion of  the  public,  founded  on  local  statutes,  and  are  in  the  nature  of 
domestic  police  regulations.  The  provisions  of  the  Code  of  F' ranee, 
set  out  in  the  declaration,  and  the  decree  of  the  courts  founded  there- 
on, are  of  the  like  nature.  It  would  seem,  that  the  policy  of  that 
country,  as  viewed  by  its^courts,  does  not  require  that  the  son-in-law 
or  other  claimant  shall  himself  do  anything  for  his  own  support,  but 
that  he  is  to  be  supported  in  idleness.  That  is  probably  not  a  matter 
of  importance  to  the  present  inquiry,  except  so  far  as  it  may  tend  to 
show  tiiat  the  judgment  or  decree  is  hostile  to  tlie  policy  of  this  coun- 
try, and  in  conflict  with  the  only  ground  upon  which  orders  arbitrarily' 
imposing  upon  one  the  burden  of  supporting  another  would  be  toler- 
atetl.  The  principle  upon  which  foreign  judgments  receive  an}'  recog- 
nition in  our  courts  is  one  of  comiU'.  It  does  not  require,  but  rather 
forbids  it,  when  such  a  recognition  works  a  direct  violation  of  the, 
policy  of  our  laws,  and  does  violence  to  what  we  deem  the  rights^pf 
our  own  citizens.  The  courts  of  this  country  will  be  slow  to  hold 
that,  whenever  an  American  citizen  sliall  visit  France,  and  reside  there 
temporarily  with  his  family,  his  son  or  his  daughter,  by  a  rash  or  im- 
prudent marriage,  can  cast  upon  the  parents,  mother  as  well  as  father, 
the   perpetual   burden   of  an   anuuiU   for  the  support  of  the   wife  or 


SECT.    I.]  DE    BRIMONT   V.   PENNIMAN.  "^^1 

husband.  So  long  as  such  residence  continues,  no  doubt,  the  parents 
must  submit  to  the  laws  of  France.  The  orders  of  her  courts  may  be 
enforced  against  them,  as  those  laws  may  prescribe  ;  but,  in  a  matter 
of  this  kind,  those  laws  must  be  executed  there,  and  such  decrees  can 
have,  and  ought  to  have,  no  extraterritorial  significance.  They  rest 
upon  no  principles  of  universal  acceptation,  like  the  obligation  of  con- 
tracts, or  the  protection  of  generally  recognized,  private,  personal 
rights.  No  disposition  to  deal  with  foreign  judgments,  so  as  to  pror 
mote  the  ends  of  justice,  demands  that  such  decrees  should  be  arl^i- 
traril}-  enforced  in  our  courts. 

\  Beyond  these  considerations,  I  think  it  plain,  upon  the  face  of  the  dec- 
laration, and,  especially  where  the  other  admitted  provisions  of  the 
French  Code  (stated  by  the  counsel)  are  brought  into  view,  that  the 
decree  itself  should  be  deemed,  and  would,  in  France  itself,  be  deemed, 
local  and  provisional,  and  designed  to  be  carried  into  effect  there,  and 
only  upon  persons  and  property  found  there.  Their  laws  contemplate 
the  supervisory  control  and  direction  of  their  courts  over  the  parties, 
in  all  the  changes  which  may  occur  in  their  relative  pecuniary  condi- 
tions. The  decree  in  question  prescribes  a  temporary  rule  of  allowance 
and  provision  for  support,  subject  to  modification  according  to  circum- 
stances. There  is  no  award  of  any  sum  certain,  to  be  presently  paid, 
and  the  declaration  does  not  show  that  any  sum  whatever  could  even 
there  be  collected,  without  a  further  application  to  the  court,  for  some 
process  or  other  award  of  means  by  which  some  definite  amount  shall 
be  collected.  Continuing  necessity,  on  the  one  hand,  and  continuing 
ability,  on  the  other,  are  assumed  for  the  future,  and  the  absence  of 
either  makes  even  the  decreed  allowance  to  cease.  Without  assuming 
to  say  that  the  father-in-law  and  mother-in-law,  if  still  in  France,  would 
not  have  the  onus  of  showing  that  circumstances  had  changed,  and  of 
procuring  a  modification  of  the  decree  thereupon,  these  observations 
bear  pertinently  on  the  nature  of  the  decree  itself,  and  with  great  force 
on  the  question  how  such  decree  is  to  be  treated  in  our  own  cohrts.  7 

In  harmony  with  what  has  been  already  suggested,  I  add,  tkaj/we 
cannot  hold  that  such  decree  is  final,  operative,  and  binding  unless  and 
until  the  defendants  go  to  France  and  there  appeal  to  the  discretion  of 
their  courts  to  modify  the  decree  according  to  tlie  new  circumstances 
which  may  arise  ;  and  yet,  the  claim  here  made,  in  regard  to  the 
effect  of  the  decree  in  our  courts,  would  require  us  to  give  judgment 
in  accordance  therewith,  even  though  the  defendants  offered  to  prove, 
and  could  prove,  that  the  plaintiff  had  come  to  a  princely  inheritance. 

Without,  therefore,  considering  the  other  alleged  imperfections  in 
the  declaration,  or  the  peculiarity  of  a  decree  which  charges  the  wife 
of  the  demurrant  personally,  or  the  want  of  any  averment  that  she  has 
any  separate  estate  which  can  be  charged  by  this  court,  I  am  of  opin- 
ion, that  the  defendant  James  F.  Penniman  is  entitled  to  judgment 
upon  his  demurrer.^ 

1  But  see  Indiana  v.  Helmer,  21  la.  370.  —  Ed. 


792  HUNTINGTON    V.    ATTRILL.  TcHAP.  XVL 


HUNTINGTON   v.   ATTRILL. 

Supreme  Court  of  the  United  States.     1892. 

{^Reported  146  United  States,  657.] 

Gray,  J.^  This  was  a  bill  in  equity  filed  March  21, 1888,  in  the  Cir- 
cuit Court  of  Baltimore  City,  b}'  CoUis  P.  Huntington,  a  resident  of 
New  Yoi'k,  against  the  Equitable  Gas  Light  Company  of  Baltimore,  a 
corporation  of  Maryland,  and  against  Henry  Y.  Attrill,  his  wife  and 
three  daughters,  all  residents  of  Canada,  to  set  aside  a  transfer  of  stock 
in  that  company,  made  b}'  him  for  their  benefit  and  in  fraud  of  his 
creditors,  and  to  charge  that  stock  with  the  payment  of  a  judgment  re- 
covered by  the  plaintifli'  against  him  in  tlie^State  of  New  York,  upon_ 
his  liability  as  a  director  in  a  New  York  corporation,  under  the  statute 
IoOS£5jYQrk_^XJL875",  c.  611.  .  .  .  On  June  larTSBO^^tlT-inT^ a 
director  of  the  company,  signed  and  made  oath  to,  and  caused  to  be 
recorded,  as  required  by  the  law  of  New  York,  a  certificate  which  he 
knew  to  be  false,  stating  that  the  whole  of  the  capital  stock  of  the 
corporation  had  been  paid  in,  whereas  in  truth  no  part  had  been 
paid  in  ;  and  by  making  such  false  certificate  became  liable,  by  the 
law  of  New  York,  for  all  the  debts  of  the  company  contracted  before 
January  29,  1881,  including  its  debt  to  the  plaintiff.  .  .  . 

J  Part  of  the  opinion  is  omitted.  —  Ed. 


SECT.  I.]  HUNTINGTON    V.    ATTRILL.  793 

The  bill  praj-ed  that  the  transfer  of  shares  in  the  gas  companj-  be 
declared  fraudulent  and  void,  and  executed  for  the  purpose  of  defraud- 
ing the  plaintiff  out  of  hi^ claim  as  existing  creditor ;  that  the  certifi- 
cates of  those  shares  in  the  name  of  Attrill  as  trustee  be  ordered  to  be 
brought  into  court  and  cancelled;  and  that  the  shares  "  be  decreed  to 
be  subject  to  the  claim  of  this  plaintiff  on  the  judgment  aforesaid,"  and 
to  be  sold  by  a  trustee  appointed  hy  the  court,  and  new  certificates 
issued  by  the  gas  company  to  the  purchasers ;  and  for  further  relief. 
One  of  the  daughters  demui-red  to  the  bill,  because  it  showed  that 
the  plaintiff's  claim  was  for  the  recovery  of  a  penalty  against  Attrill 
arising  under  a  statute  of  the  State  of  New  York,  and  because  it  did 
not  state  a  case  which  entitled  the  plaintiff  to  any  relief  in  a  court  of 
equity  in  the  State  of  Maryland.   .   .  . 

The  Circuit  Court  of  Baltimore  City  overruled  the  demurrer.  On 
appeal  to  the  Court  of  Appeals  of  the  State  of  Maryland,  the  order  was 
reversed,  and  the  bill  dismissed.     70  Md.  191. 

The  ground  most  prominently  brought  forward  and  most  fully  dis- 
cussed in  the  opinion  of  the  majority  of  the  court,  delivered  by  Judge 
Bryan,  was  that  the  liability  imposed  by  section  21  of  the  statute  of 
New  York  upon  officers  of  a  corporation,  making  a  false  certificate  of 
its  condition,  was  for  all  its  debts,  without  inquiring  whether  a  creditor 
had  been  deceived  and  induced  by  deception  to  lend  his  money  or  to 
give  credit,  or  whether  he  had  incurred  loss  to  any  extent  by  the  in- 
ability of  the  corporation  to  pay,  and  without  limiting  the  recovery  to 
the  amount  of  loss  sustained,  and  was  intended  as  a  punishment  for 
doing  any  of  the  forbidden  acts,  and  was,  therefore,  in  view  of  the  de- 
cisions in  that  State  and  in  Maryland,  a  penalty  which  could  not  be 
enforced  in  the  State  of  Maryland  ;  and  that  the  judgment  obtained 
in  New  York  for  this  penalty,  while  it  "  merged  the  original  cause 
of  action  so  that  a  suit  cannot  be  again  maintained  upon  it,"  and  "is 
also  conclusive  evidence  of  its  existence  in  the  form  and  under  the  cir- 
cumstances stated  in  the  pleadings,"  yet  did  not  change  the  nature 
of  the  transaction,  but,  within  the  decision  of  this  court  in  Wisconsin 
V.  Pelican  Ins.  Co.,  127  U.  S.  265,  was  in  its  "essential  nature  and 
real  foundation  "  the  same  as  the  original  cause  of  action,  and  there- 
fore a  suit  could  not  be  maintained  upon  such  a  judgment  beyond  the 
limits  of  the  State  in  which  it  was  rendered,     pp.  193-198.  ... 

A  writ  of  error  was  sued  out  by  the  plaintiff  and  allowed  by  the 
Chief  Justice  of  the  Court  of  Appeals  in  Maryland.  .  .  . 

Penal  laws,  strictly  and  properly,  are  those  Imposing  punishment  for 
an  offence  committed  against  the  State,  and  which,  by  the  English  and 
American  constitutions,  the  executive  of  the  State  has  the  power  to 
pardon.  Statutes  giving  a  private  action  against  the  wrongdoer  are 
sometimes  spoken  of  as  penal  in  their  nature,  but  in  such  eases  it  has 
been  pointed  out  that  neither  the  liability  imposed  nor  the  remedy 
given  is  strictlv  penal.  ... 

The  test  whether  a  law  is  penal,  in  the  strict  and  primary  sense,  is 


794  HUNTINGTOX    V.    ATTRILL.  [CHAP.  XVI. 

whether  the  wrong  sought  to  be  redressed  is  ji  wrong  to  the  public^  or  a 
wrong  to  the  ladividual,  according  to  the  familiar  classification  of 
BlackstoneT""  Wrongs  are  divisible  into  tw©  sorts  or  species  :  private" 
wrongs  and  public  wrongs.  The  former  are  an  infringement  or  priva- 
tion of  the  private  or  civil  rights  belonging  to  individuals,  considered 
as  individuals,  and  are  thereupon  frequenll}-  termed  civil  injuries  ;  the 
latter  are  a  breach  and  violation  of  public  rights  and  duties,  which 
affect  the  whole  community,  considered  as  a  community,  and  are  dis- 
tinguished by  the  harsher  appellation  of  crimes  and  misdemeanors." 
3  Bl.  Com.  2^^  .  .  . 

Upon  the  question  what  are  to  be  considered  penal  laws  of  one 
country,  within  the  international  rule  which  forbids  such  laws  to  be 
enforced  in  any  other  country,  so  much  reliance  was  placed  by  each 
party  in  argument  upon  the  opinion  of  this  court  in  Wisconsin  v. 
Pelican  Ins.  Co.,  127  U.  S.  265,  that  it  will  be  convenient  to  quote  from 
that  opinion  the  principal  propositions  there  affirmed  : 

"  The  rule  that  the  courts  of  no  country  execute  the  penal  laws  of 
another  applies  not  only  to  prosecutions  and  sentences  for  crimes  and 
misdemeanors,  but  to  all  suits  in  favor  of  the  State  for  the  recovery  of 
pecuniary  penalties  for  any  violation  of  statutes  for  the  protection  of 
its  revenue,  or  other  municipal  laws,  and  to  all  judgments  for  such 
penalties."     p.  290. 

''The  application  of  the  rule  of  the  courts  of  the  several  States  and 
of  the  United  States  is  not  affected  by  the  provisions  of  the  Constitu- 
tion and  of  the  act  of  Congress,  by  which  the  judgments  of  the  courts  of 
any  State  are  to  have  such  faith  and  credit  given  to  them  in  every  court 
within  the  United  States  as  they  have  by  law  or  usage  in  the  State  in 
which  they  were  rendered."     p.  291. 

"  The  essential  nature  and  real  foundation  of  a  cause  of  action  are 
not  changed  by  recovering  judgment  upon  it ;  and  tlie  technical  rules, 
which  regard  the  original  claim  as  merged  in  the  judgment,  and  the 
judgment  as  implying  a  promise  hy  the  defendant  to  pay  it,  do  not  pre- 
clude a  court,  to  which  a  judgment  is  presented  for  affirmative  action, 
(while  it  cannot  go  beliind  tlie  judgment  for  the  purpose  of  examining 
into  the  validity  of  the  claim,)  from  ascertaining  whether  the  claim  is 
really  one  of  such  a  nature  that  the  court  is  authorized  to  enforce  it." 
pp.  292,  293. 

"The  statute  of  Wisconsin,  under  which  the  State  recovered  in  one 
of  her  own  courts  the  judgment  now  and  here  sued  on,  was  in  the 
strictest  sense  a  penal  statute,  im[)<)sing  a  penalty  upon  any  insurance 
company  of  anotner  State,  doing  business  in  the  State  of  Wisconsin 
without  having  deposited  with  the  proper  officer  of  the  State  a  full 
statement  of  its  property  and  business  during  the  previous  year.  The 
cause  of  action  was  not  any  private  injury,  but  solely  the  offence  com- 
mitted against  the  State  by  violating  her  law.  The  prosecution  was  in 
the  name  of  the  State,  and  the  whole  penalty,  when  recovered,  would 
accrue  to  the  State."     p.  299.  ... 


J.  %A>>-« 


SECT.  I,]  HUNTINGTON    V.    ATTRILL.  795 

The  question  whether  a  statute  of  one  State,  which  in  some  aspects 
may  be  called  penal,  is  a  penal  law  in  the  international  sense,  so  that 
it  cannot  be  enforced  in  the  courts  of  another  State,  depends  upon  the  i  .  i  j, 
question  whether  its  purpose  is  to  punish  an  offence  against  the  public  >  /\'  ^  X  C 
justice  of  the  State,  or  to  afford  a  private  remedy  to  a  person  in- 
jured by  the  wrongful  act.  There  could  be  no  better  illustration  of 
this  than  the  decision  of  this  court  in  Dennick  v.  Railroad  Co.,  103, 
U.  S.  11.  .  .  . 

That  decision  is   important  as  establishing  two  points  :     1st.    The^ 
court  considered  ''  crimnnLUisf^  that  ia  to  pay,  laws-pmusbiog-fciimesr' 
aTconstitutino;  the  wbnlp  class  of  penal  laws  which  cajmat_Iifi_euforceiI 
extraterritorialh\^  2d.  A_  statute  of  a  State,  manifejU^' Jntended^to 
-prote^^hfe,  anclto  impost  a  new  and  extra^ixlinajx  4x11- lia'*''i^liUiiU- 
those  causing^death,  by  subjecting  them  to  a  private  action  for  thtt- 
■■pecunTary''daraages  thereby  resulting  to_JJie  family  of  the   decfiuaed 
""might  be  enforced  in  a  Circuit  Courtj)f  the  United  Stotes_JieldJi^ii 
~otlu?r  State,  without,  regard^to  the  question  whether  a  similar  liabihtj 
would  have  attached  for  a  similar  cause  in  thau  State.. ^.  .  .  ^  «  y|       t)    J 

The  provision  of  the  statute  or  iN.cw  York,  now  inj^iestion.,  maldjag^       ^Ju^--Kf^ 

the  officers  of  a  corporation,  who  sign  onjjjw-nrd  ^  fnlsp  n.pvt\f\onte  of 

'tEe  amount  of  its  capital*  stock,  liable  for  all  its  debts,  is  in  no  sense  a 
criminal  or  quasi  criminal  lajs,     Tlie  statute,  while  it  enables  persons 
complving  with  its  provisions  to  do  business  as  a  corporation,  witliout 
being  subject  to  the  liability  of  general  partners,  takes  pains  to  secure 
and  maintain  a  proper  corporate  fund  for  the  payment  of  the  corporate 
debts.     With  this  aim,  it  makes  the  stockholders  individually  liable  for 
the  debts  of  the  corporation  until  the  capital  stock  is  paid  in  and  a 
certificate  of  the  payment  made  by  the  officers  ;  and  makes  the  officers 
liable  for  any  false  and  material  representation  in  that  certificate.     The 
individual  liability  of  the  stockholders  takes  the  place  of  a  corporate 
fun4  until  that  fund  has  been  duly  created  ;  and  the  individual  liabiHt£. 
of  the  officers  takes  the  place  of  the  fund,  in  case  their  state inenlth at,, 
it  has  been  duly  created  is  false._  If  the  officers  do  not  truly  state  and 
record  the  facts  which  exempt  them  from  liability,  they  are  made  liable 
directly  to   every  creditor  of  the  company,   who  by  reason  of  tlieir 
wrongful  acts  has  not  the  security,  for  the  payment  of  hi3  debt  out  of 
the  corporate  property,  on  which  he  had  a  right  to  rely,    as  tlie  statute 
imposes  a  burdensome  liability  on  the  officers  for  their  wrongful  act,  it 
may  well  be  considered  penal,  in  the  sense  that  it  should  be  strictly 
construed.     But  as  it  gives  a  civil  remedy,  at  the  private  suit  oftUfi 
crediiQL  only,  and  measured  by  the  amount  of  his  debt,  it  is  as  to  hiin.^ 
^clearly  remedial.  -To  maintain  such  a  suit  is  not  to  administer  a  pun-  _^ 
ishment  imposed  upon  an  offender  against  the  State,  but  simply  to  en-   ^ 
force  a  private  right  secured  under  its  laws  to  an  individual.      We  can  _ 
see  no  just  ground,  on  principle,  for  holding  such  a  statute  to  be  au 
lenal  law,  in  the  sense  that  it  cannot  be  enforced  in  a  foreign  State^ 
or  countr3\  .   .^ 


796  HUNTIXGTON   V.    ATTRILL.  [CHAP.  XVl. 

It  is  true  that  the  courts  of  some  States,  including  Maryland,  have 
declined  to  enforce  a  similar  liability  imposed  by  the  statute  of  another 
State.  But,  in  each  of  those  cases,  it  appears  to  have  been  assumed 
to  be  a  sufficient  ground  for  that  conclusion,  that  the  liability  was  not 
founded  in  contract,  but  was  in  the  nature  of  a  penalty  imposed  bj^ 
statute  ;  and  no  reasons  were  given  for  considering  the  statute  a  penal 
law  in  the  strict,  primary',  and  international  sense.  Derrickson  v. 
Smith,  3  Dutch.  (27  N.  J.  Law),  166;  Ilalsey  v.  McLean,  12  Allen, 
438  ;  First  National  Bank  v.  Price,  33  Md.  487. 

It  is  also  true  that  in  Steam  Engine  Co.  v.  Hubbard,  101  U.  S.  188, 
192,  Mr.  Justice  Clifford  referred  to  those  cases  by  waj-  of  argument. 
But  in  that  case  as  well  as  in  Chase  v.  Curtis,  113  U.  S.  452,  the  onh' 
point  adjudged  was  that  such  statutes  were  so  far  penal  tliat  they  must 
be  construed  strictly  ;  and  in  both  cases  jurisdiction  was  assumed  by 
the  Circuit  Court  of  the  United  States,  and  not  doubted  by  this  court, 
which  could  hardly  have  been  if  the  statute  had  been  deemed  penal 
witliin  the  maxim  of  international  law.  In  Flash  v.  Conn,  109  U.  S. 
371,  the  liability  sought  to  be  enforced  under  the  statute  of  New  York 
was  the  liability  of  a  stockholder  arising  upon  contract ;  and  no  ques- 
tion was  presented  as  to  the  nature  of  the  liability  of  officers. 

But  in  Hornor  v.  Henning,  93  U.  S.  228,  this  court  declined  to  con- 
sider a  similar  liability  of  officers  of  a  corporation  in  the  District 
of  Columbia  as  a  penalty.  See  also  Neal  v.  Moultrie,  12  Ga.  104; 
Gady  v.  Sanford,  53  Vt.  632,  639,  640;  Nickerson  v.  Wheeler,  118 
Mass.  295,  298;  Post  v.  Toledo,  &c.  Railroad,  144  Mass.  341,  345  ; 
Woolverton  v.  Taylor,  132  111.  197;  Morawetz  on  Corpoiations 
(2d  ed.),  §  908. 

The  case  of  Missouri  Pacific  Railway  v.  Humes,  115  U.  S.  512,  on 
which  the  defendant  much  relied,  related  onl}'  to  the  authority  of  the 
legislature  of  a  State  to  compel  railroad  corporations,  neglecting  to  pro- 
vide fences  and  cattle-guards  on  the  lines  of  their  roads,  to  pay  double 
damages  to  the  owners  of  cattle  injured  by  reason  of  the  neglect;  and 
no  question  of  the  jurisdiction  of  the  courts  of  another  State  to  main- 
ain  an  action  for  such  damages  was  involved  in  the  case,  suggested  by 
.ounsel,  or  in  the  mind  of  tlie  court. 

The  true  limits  of  the  international  rule  are  well  stated  in  tlie  decision 
of  the  Judicial  Committee  of  tlie  Privy  Council  of  England,  upon  an  ap- 
peal from  Canada,  in  an  action  brought  by  the  present  plaintiff  against 
Attrill  in  the  Province  of  Ontario  upon  the  judgment  to  enforce  which 
the  present  suit  was  brought.  The  Canadian  judges,  having  in  evi' 
deuce  before  them  some  of  the  cases  in  the  Court  of  Appeals  of  New 
York,  above  referred  to,  as  well  as  the  testimony  of  a  well-known 
lawyer  of  New  York  that  such  statutes  were,  and  had  been  held  by  that 
court  to  be,  strictly  penal  and  punitive,  differed  in  opinion  upon  the 
question  whether  the  statute  of  New  York  was  a  penal  law  which  could 
not  be  enforced  in  another  country,  as  well  as  upon  the  question 
whether  the  view  taken  by  the  courts  of  New  York  should  be  conclusive 


SECT.  I.]  HUNTINGTON   V.   ATTRILL.  79t 

upon  foreign  courts,  and  fiually  gave  judgment   for   the  defendant. 
Huntington  v.  Attrill,  17  Out.  245,  and  18  Out.  App.  136. 

In  the  Privy  Council,  Lord  Watson,  speaking  for  Lord  Chancellor 
Halsbury  and  other  judges,  as  well  as  for  himself,  delivered  an  opinion 
in  favor  of  reversing  the  judgment  below,  and  entering  a  decree  for  the 
appellant,  upon  the  ground  that  the  action  "  was  not,  in  the  sense  of 
international  law,  penal,  or,  in  other  words,  an  action  on  behalf  of  the 
government  or  community  of  the  State  of  New  York  for  punish- 
ment of  an  offence  against  their  municipal  law."  The  fact  that  that 
opinion  has  not  been  found  in  any  series  of  reports  readily  accessible  in 
this  country,  but  only  in  8  Times  Law  Reports,  341,  affords  special 
reasons  for  quoting  some  passages. 

"The  rule"  of  international  law,  said  Lord  Watson,  "had  its 
foundation  in  the  well-recognized  principle  that  crimes,  including  in 
that  term  all  breaches  of  public  law  punishable  by  pecuniary  mulct  or 
otherwise,  at  the  instance  of  the  State  government,  or  of  some  one  rep- 
resenting the  public;  were  local  in  this  sense,  that  the}-  were  only  cog- 
nizable and  punishable  in  the  country  where  they  were  committed. 
Accordingly  no  proceeding,  even  in  the  shape  of  a  civil  suit,  which  had 
for  its  object  the  enforcement  b}^  the  State,  whether  directly  or  in- 
directly, of  punishment  imposed  for  such  breaches  by  the  lex  loci, 
ought  to  be  admitted  in  the  courts  of  any  other  country.  In  its  ordi- 
nary acceptation,  the  word  '  penal'  might  embrace  penalties  for  infrac- 
tions of  general  law,  which  did  not  constitute  offences  against  the  State  ; 
it  might,  for  many  legal  purposes,  be  applied  with  perfect  propriety  to 
penalties  created  by  contract ;  and  it,  therefore,  when  taken  by  itself, 
failed  to  mark  that  distinction  between  civil  rights  and  criminal  wroncrs, 
which  was  the  very  essence  of  the  international  rule." 

After  observing  that,  in  the  opinion  of  the  Judicial  Committee,  the 
first  passage  above  quoted  from  Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S. 
265,  290,  '"  d|sclosed^theproper^test_foi^^ 

was  penal  within  the  meaning^f_th£-rul£,'!--h43.  added  :   "  Aj2i'oceedingj_ 
in  order  to  coiiTe  witliTn  the  scoj^e^of^  U^ije  rjdcj  nuijlJae  injjbejm 
a  suit  in  favor  of  the  Staie_jdijQse_kw  hjui  b^enjnfi^^^^^  All  the  pro- 

visions of  municipal  statutes  for  the  regulation  of  trade  and  ti'ading 
companies  were  presumably  enacted  in  the  interest  and  for  the  benefit 
of  the  communit}'  at  large  ;  and  persons  who  violated  those  provisions 
were,  in  a  certain  sense,  ofi'enders  against  the  State  law  as  well  as 
against  individuals  who  might  be  injured  b}-  their  misconduct.  But 
foreign  tribunals  did  not  regard  those  violations  of  statute  law  as 
offences  against  the  State,  unless  their  vindication  rested  with  the 
State  itself  or  with  the  community  which  it  represented.  Penalties 
might  be  attached  to  them,  but  that  circumstance  would  not  bring  them 
within  the  rule,  except  in  cases  where  those  penalties  were  recoverable 
at  the  instance  of  the  State,  or  of  an  official  dul}-  authorized  to  prose- 
cute on  its  behalf,  or  of  a  member  of  the  public  in  the  character  of  a 
common  informer.     An  action  by  the  latter  was  regarded  as  an  actio 


798  HUNTINGTON    V.    ATTEILL.  [CHAP.  XVI. 

popidaris  pursued,  not  in  his  individual  interest  but  in  the  interest  of 
the  whole  community." 

He  had  ah-eady,  in  an  earlier  part  of  the  opinion,  observed :  "  Their 
lordships  could  not  assent  to  the  proposition  that,  in  considering 
whether  the  present  action  was  penal  in  such  sense  as  to  oust  their 
jurisdiction,  the  courts  of  Ontario  were  bound  to  pay  absolute  deference 
to  any  interpretation  which  might  have  been  put  upon  the  statute  of 
1875  in  the  State  of  New  York.  They  had  to  construe  and  apply  an 
international  rule,  which  was  a  matter  of  law  entirely  within  the  cogni- 
zance of  the  foreign  court  whose' jurisdiction  was  invoked.  Judicial 
decisions  in  the  State  where  the  cause  of  action  arose  were  not  prece- 
dents which  must  be  followed,  although  the  reasoning  upon  which 
they  were  founded  must  always  receive  careful  consideration  and  might 
be  conclusive.  T!ie  court  appealed  to  must  determine  for  itself,  in  the 
first  place,  the  substance  of  the  right  sought  to  be  enforced,  and,  in 
the  second  place,  whether  its  enforcement  would,  either  directly  or  in- 
directly, involve  the  execution  of  the  penal  law  of  another  State. 
Were  any  other  principle  to  guide  its  decision,  a  court  might  find  itself 
in  the  position  of  giving  effect  in  one  case,  and  denying  effect  in  an- 
other, to  suits  of  the  same  character,  in  consequence  of  the  causes  of 
action  having  arisen  in  different  countries  ;  or  in  the  predicament  of 
being  constrained  to  give  effect  to  laws  which  were,  in  its  own  judg- 
ment, strictly  penal." 

In  this  view  that  the  question  is  not  one  of  local,  but  of  international 
law,  we  fully  concur.  The  test  is  not  bv  what  name  the  statute  is 
called  by  the  legislature  or  the  courts  of  the  State  in  which  it  was 
passed,  but  whether_it  appears  to  the  tribunal  which  is  called  upon  to 
enforce  it  to  be,  in~it3~essential  character  and  ett'ect,  a  punj&hment  of . 
an^^offence^against  the  public,  or  a  grnn^^^  "^  "  rivil  right  to  a  private 
person^ 

In  this  countr}',  the  question  of  international  law  must  be  determined 
in  the  first  instance  by  the  court,  State  or  national,  in  which  the  suit  is 
brought.  If  the  suit  is  brought  in  a  Circuit  Court  of  the  United  States, 
it  is  one  of  those  questions  of  general  jurisprudence  which  that  court 
must  decide  for  itself,  uncontrolled  by  local  decisions.  Burgess  i\  Selig- 
man,  107  U.  S.  20,  33  ;  Texas  &  Pacific  Railway  r.  Cox,  145  U.  S.  593, 
605,  above  cited.  If  a  suit  on  the  original  liabilit}'  under  the  statute  of 
one  State  is  brought  in  a  court  of  another  State,  the  Constitution  and 
laws  of  the  United  States  have  not  authorized  its  decision  upon  such  a 
question  to  be  reviewed  by  this  court.  New  York  Ins.  Co.  r.  Ilcndron, 
92  U.  S.  286  ;  Roth  v.  Ehman,  107  U.  S.  319.  But  if  the  original  liability 
has  passed  into  judgment  in  one  State,  the  courts  of  another  State, 
when  asked  to  enforce  it,  are  bound  bj'  the  Constitution  and  laws  of 
the  United  States  to  give  full  faith  and  credit  to  that  judgment,  and  if 
they  do  not,  their  decision,  as  said  at  the  outset  of  this  opinion,  may 
be  reviewed  and  reversed  by  this  court  on  writ  of  error.  The  essential 
nature  and  real  foundation  of  a  cause  of  action,  indeed,  are  not  changed 


SECT,  I.]  HUNTINGTON   V.    ATTRILL.  799 

by  recovering  judgment  upon  it.  This  was  directly  adjudged  in  Wis- 
consin V.  Pelican  Ins.  Co.,  above  cited.  The  difiference  is  only  in  the 
appellate  jurisdiction  of  this  court  in  the  one  case  or  in  the  other. 

If  a  suit  to  enforce  a  judgment  rendered  in  one  State,  and  which  has 
not  changed  the  essential  nature  of  the  liability,  is  brought  in  the  courts 
of  another  State,  this  court,  in  order  to  determine,  on  writ  of  error, 
whether  the  highest  court  of  the  latter  State  has  given  full  faith  and 
credit  to  the  judgment,  must  determine  for  itself  whether  ^^"^  '^T'"r'""^ 
cause  ofaction  is  penal  in  the  internatiojiaJ  spnsa.  .  .   . 

The  judgment  rendered  by  a  court  of  the  State  of  New  York,  now 
in  question,  is  not  impugned  for  any  want  of  jurisdiction  in  that  court. 
The  statute  under  which  that  judgment  was  recovered  was  not,  for  the 
reasons  already  stated  at  length,  a  penal  law  in  the  international  sense. 
The  faith  and  credit,  force  and  effect,  which  that  judgment  had  by  law 
and  usage  in  New  York,  was  to  be  conclusive  evidence  of  a  direct  civil 
liability  from  the  individual  defendant  to  the  individual  plaintiff  for  a 
certain  sum  of  money,  and  a  debt  of  record,  on  which  an  action  would 
lie,  as  on  any  other  civil  judgment  inter  partes.  The  Court  of  Appeals 
of  Maryland,  therefore,  in  deciding  this  case  against  the  plaintiff,  upon 
the  ground  that  the  judgment  was  not  one  which  it  was  bound  in  any 
manner  to  enforce,  denied  to  the  judgment  the  full  faith,  credit,  and 
effect  to  which  it  was  entitled  under  the  Constitution  and  laws  of  the 
United  States. 

Judgment  reversed,  and  case  remanded  to  the  Court  of  Appeals  of 
the  State  of  Maryland  for  further  proceedings  not  inconsistent 
with  the  opinion  of  this  court} 

Fuller,  C.  J.,  dissented :  Lamar  and  Shiras,  JJ.,  did  not  sit. 

1  Ace.  Huntington  v.  Attrill,  [1893]  A.  C.  150.  Contra,  First  Nat.  Bank  v. 
Price,  33  Md.  487  ;  Halsey  v.  McLean,  12  AU.  438  ;  Derrickson  v.  Smith,  3  Dutch.  166  i 
Woods  V. Wicks,  7  Lea,  40.  —Ed. 


800         GAEDNER  V.  NEW  YOKK  AND  NEW  ENGLAND  K.  R.       [cHAP.  XVL 
SECTION    II.  —  Obligations  ex  delicto. 


GARDNER  v.   NEW  YORK  AND  NEW  ENGLAND  R.  R 

Supreme  Court  of  Rhode  Island.     1892. 

[Reported  17  Rhode  Island,  790.] 

TiLLiXGHAST,  J.  Tliis  is  an  action  of  trespass  on  the  case,  to  recover 
damages  for  injuries  alleged  to  have  been  sustained  by  the  negligence 
of-4.he  defendant  corporation. 

,   Tiie  accident  occuijed  at  a_  grade  crossing  on  the  defendant's  road^ 
at4)anielsonville,  in  the  State  of  Connecticut ;  and  the  third  count  of 
the  plaintiffs  declaration  is  based  upon  sections  3553  and  3554  of  the 
General  Statutes  of  said  State  of  Connecticut,  which  are  set  forth  ia 
said^  count. 

These  sections  are  as  follows  :  — 

"Sect.  3553.  Every  engine  used  upon  any  railroad  shall  be  sup- 
plied with  a  bell  of  at  least  thirty-five  pounds'  weight,  and  a  suitable 
steam  whistle,  which  bell  and  whistle  shall  be  so  attached  to  such 
engine  as  to  be  conveniently  accessible  to  the  engineer,  and  in  good 
order  for  use. 

"  Sfxt.  3554.  Every  person  controlling  the  motions  of  any  engine 
upon  any  railroad  shall  commence  sounding  the  bell  or  steam  whistle 
attached  to  such  engine  when  such  engine  shall  be  approaching,  and 
within  eighty  rods  of,  the  place  where  said  railroad  crosses  any  high- 
wav  at  grade,  and  keep  such  bell  or  whistle  occasionally  sounding 
until  such  engine  has  crossed  such  highway  ;  and  the  railroad  com- 
pany in  whose  employment  he  may  be  shall  pay  all  damages  which 
may  accrue  to  any  person  in  consequence  of  any  omission  to  comply 
with  the  provisions  of  this  section  ;  and  no  railroad  company  shall 
knowingly  employ  any  engineer  who  has  been  twice  convicted  of 
violating  the  provisions  of  this  section." 

The  defendant  has  demurred  to  said  third  count  in  the  plaintiff's 
declaration,  on  the  ground  that  the  said  statute,  upon  which  it  is 
based,  is  penal  in  its  nature,  and,  being  a  statute  of  another  State, 
there  can  be  no  recovery  under  it  beyond  the  territory  in  and  for 
which  it  was  enacted. 

The  plaintiff  makes  no  contention  that  a  penrd  statute  has  any 
extraterritorial  force,  but  simpl}'  claims  that  the  statute  counted 
on  is  remedial  only,  and  not  penal  in  its  nature. 

The  only  question  raised  by  the  demurrer  therefore  is,  whether  said 
section  3554  is  penal  in  its  nature. 

A  penal  statute  is  one  by  which  some  punishment  is  imposed  for  a 
violation  of  the  law.  A  statute  may  be  penal  in  one  part  and  remedial 
in  another:  Sutherland  on  Statutory  Construction,  §  208,  and  cases 
cited  ;  and  in  such  case,  when  it  is  sought  to  enforce  the  penalty,  it 
is  to  be  construed  as  a  penal  statute  ;  and  when  it  is  sought  to  enforce 
the  civil   remedy  provided,  it  is  to  be  construed  as  remedial  in   its 


SECT.  II.]   GARDNER  V.   NEW  YORK  AND  NEW  ENGLAND  R.  R.      801 

nature.  While  the  statute  before  us  imposes  a  duty  upon  the  defend- 
ant corporation  with  regard  to  the  giving  of  signals  at  grade  crossings, 
it  does  not  impose  any  penalty  for  the  neglect  or  violation  of  such 
dut}'.  The  only  punishment,  if  such  it  may  properly  be  called,  for 
such  neglect  or  violation  of  duty,  is  the  damages  to  which  it  may 
subject  itself  at  the  suit  of  the  party  who  is  injured  by  reason 
thereof. 

It  is  true  that  the  last  clause  of  said  section  3554  reads  like  a  penal 
statute,  in  that  it  provides  that  "  no  railroad  company  shall  knowingly 
employ  an}'  engineer  who  has  been  twice  convicted  of  violating  the 
provisions  of  this  section."  But,  notwithstanding  this  prohibition 
upon  the  railroad  company,  there  is  no  penalty  provided  for  its  viola- 
tion ;  nor  is  there  any  mode  provided,  so  far  as  we  are  informed, 
whereby  an  engineer  may  be  convicted  for  violating  the  provisions 
of  said  statute. 

We  are  therefore  of  the  opinion  that  said  statute  is  not  penal  either 
in  whole  or  in  part,  but  remedial  only.  It  simply  provides  that  a  rail- 
road company  shall  pay  all  damages  which  may  accrue  to  any  person 
in  consequence  of  any  omission  to  comply  with  the  provisions  thereof. 
And  it  is  well  settled  that  where  a  statute  only  gives  a  remedy  for  an 
injury  against  the  person  committing  it  to  the  person  injured,  and  the 
recovery  is  limited  to  the  amount  of  loss  sustained,  or  to  cumulative 
dainnges,  as  compensation  for  the  injury,  it  falls  within  the  class  of 
remedial  statutes.  Blaine  v.  Curtis,  59  Vt.  120;  Brice  v.  Gibbons, 
8  N.  J.  Law,  324. 

There  are  cases  which  even  go  to  the  extent  of  holding  that  statutes 
giving  double  damages  for  injuries  sustained  by  reason  of  the  neglect 
of  towns  to  keep  their  highways  in  repair,  and  for  injuries  by  dogs,  are 
remedial  and  not  penal,  the  cumulative  damages  being  given  as  com- 
pensation. Stanley  v.  Wharton,  9  Price,  301.  See  Reed  v.  North- 
field,  13  Pick.  94  ;  Mitchell  v.  Clapp,  12  Cush.  278  ;  Palmer  v.  York 
Bank,  18  Me.  166  ;  Bayard  v.  Smith,  17  Wend.  88. 

The  counsel  for  the  defendant  contends  that  the  statute  relied  on  by 
the  plaintiff  in  the  count  demurred  to  is  very  similar  to  the  one  relied 
on  in  O'Reilly  v.  N.  Y.  &  N.  E.  R.  R.  Co.,  16  R.  I.  388,  392,  which 
last  named  statute  this  court  held  to  be  penal  in  its  nature.  We  fail 
to  see  the  similarity  between  these  two  statutes.  In  the  Massachu- 
setts statute  relied  on  by  the  plaintiff  in  the  case  last  cited,  the  railroad 
company  is  subjected  to  liability  where,  by  reason  of  its  carelessness, 
the  life  of  a  passenger,  or  of  a  person  being  in  the  exercise  of  due 
diligence  and  not  a  passenger  or  in  its  employment,  is  lost.  "The 
provision  for  such  case,"  said  Durfee,  C.  J.,  in  delivering  the  opinion 
of  the  court,  "  is,  that  the  offending  corporation  may  be  punished  by 
fine,  or  indictment,  or  suit  for  damages  in  an  action  of  tort,  the  fine 
imposed,  or  the  damages  recovered,  according  as  one  or  the  other 
remedy  is  pursued,  to  be  not  less  than  five  hundred  nor  more  than 
five  thousand  dollars  ;  the  damages,  in  case  the  corporation  is  civilly 

61 


802     WALSH  U.  NEW  YORK  AND  NEW  ENGLAND  RAILROAD.     [CHAP.  XVL 

prosecuted,  to  be  assessed  with  reference  to  the  degree  of  cidpahility  of 
the  corporation  or  of  its  servants  or  agents.^'' 

That  statute  clearl}'  comes  within  the  definition  of  a  penal  statute  as 
above  given.  A  penalty  is  attached  for  its  violation,  and  a  mode  is 
provided  for  the  recovery  of  such  penalty,  while,  in  the  statute  before 
us  in  this  case,  there  is  no  penalty-  attached  to  the  violation  thereof. 

Demurrer  overruled. 


WALSH  V.   NEW  YORK  AND  NEW  ENGLAND  RAILROAD. 

Supreme  Judicial  Court  of  Massachusetts.     1894. 

[Ecported  160  Massachusetts,  5 71. J 

Holmes,  J.^  This  is  an  action  of  tort  to  recover  for  a  personal  injury 
suffered  by  the  plaintiff  in  Connecticut.   .   .   . 

If,  however,  we  assume,  as  was  ruled  and  as  we  do  assume,  that  if 
the  accident  had  happened  in  this  State  the  plaintiff  could  not  have 
recovered,  it  is  argued  that  he  cannot  recover  now.  A  decision  in 
Wisconsin  and  language  from  some  English  cases  are  cited  which  more 
or  less  favor  this  contention.  Anderson  v.  Milwaukee  &  St.  Paul  Rail- 
way, 37  Wis.  321;  The  Halley,  L.  R.  2  P.  C.  193,  204;  Phillips  v. 
Eyre,  L.  R.  6  Q.  B.  1,  28,  29;  The  M.  Moxham,  1  P.  D.  107,  111. 
Possibly,  when  it  becomes  material  to  scrutinize  the  question  more 
closely,  the  English  law  will  bo  found  to  be  consistent  with  our  views. 
But  however  this  may  be,  we  are  of  opinion  that,  as  between  the 
States  of  this  Union,  when  a  transitory  cause  of  action  has  vested  in 
one  of  them  under  the  common  law  as  there  understood  and  adminis- 
tered, the  mere  existence  of  a  slight  variance  of  view  in  the  forum 
resorted  to,  not  amounting  to  a  fundamental  difference  of  policj-, 
sliould  not  prevent  an  enforcement  of  the  obligation  admitted  to  have 
arisen  by  the  law  which  governed  the  conduct  of  the  parties.  See 
Iliggins  V.  Central  New  England  &  Western  Railroad,  155  Mass.  176. 
It  is  unnecessary  to  consider  whether  we  should  be  prepared  to  adopt 
in  its  full  extent  what  is  thought  by  the  learned  editor  of  Story,  Conflict 
of  Law  (Sth  ed.),  §  G25,  note  «,  to  be  the  true  doctrine,  —  that  "  whether 
the  domestic  law  provides  for  redress  in  like  cases  should  in  principle 
be  immaterial,  so  long  as  the  right  is  a  reasonable  one  and  not  opposed 
to  the  interests  of  the  State."  The  cases  cited,  Dennick  v.  Railroad 
Co.,  103  U.  S.  11,  and  Leonard  r.  Columbia  Steam  Navigation  Co.,  84 
N.  Y.  48,  go  further  than  the  decisions  of  tliis  State.  Richardson  v. 
New  York  Central  Railroad,  98  Mass.  85.  The  policy  of  the  supposed 
Connecticut  rule  cannot  be  said  to  be  opposed  to  that  prevailing  here, 
even  apart  from  statute.     See  St.  1893,  c.  359. 

Exceptions  overruled.'^ 

*  Part  of  the  opinion  is  omitted.  —  Ed. 

«  Ace.  Herrick  v.  M.  &  S.  L.  R.  R.  31  Minu.  11.  —Ed. 


SECT.  IIL]  hope    V.   HOPE.  803 


SECTION   IIL 

OBLIGATIONS    EX    CONTRACTU, 


HOPE   V.    HOPE. 
Chancery.     1857.        • 
[Reported  8  De  Gex,  Macnaghten  ^  Gordon,  731.] 

This  was  an  original  hearing  of  a  demurrer  by  the  defendant,  Johu 
Adrian  Hope,  to  an  amended  bill  filed  by  his  wife,  Mathilde  Emilie 
Hope.  The  substance  of  the  case  stated  by  the  original  bill  was  as 
follows  :  — 

The  marriage  between  the  plaintiff,  who  was  a  Frenchwoman,  and 
the  defendant,  who  was  an  Englishman,  took  place,  in  1845,  in  England. 
For  some  years  after  the  marriage  the  husband  and  wife  resided  in 
France,  where  they  became  domiciled,  and  where  their  five  children 
were  born.  In  consequence  of  differences  which  arose  between  tlie 
plaintiff  and  the  defendant,  the  latter,  in  the  early  part  of  1853,  sent 
all  the  children  to  England;  but  on  the  21st  of  May  in  that  year  the 
two  youngest,  Adrian  Elias  and  John  Henry,  were  allowed  by  the  de- 
fendant to  be  taken  back  to  France,  and  were  restored  to  Mrs.  Hope. 
Proceedings  took  place  before  the  Frent^li  tribunals  with  respect  to  the 
custody  of  the  children,  and  in  August.  1853.  the  plaintiff  instituted  a 
guit  against  her  husband  in  the  Consistory  Court  of  London  in  order  to 
obtain  a  decree  of  divorce  on  the  ground  of  cruelty  and  adultery,  to 
which  Mr.  Hope  tiled  a  responsive  allegation.  On  the  11th  of  Novem- 
ber, 1853,  the  five  infant  children  filed  a  bill  in  chancery  by  their  next 
friend,  praying  that  Mrs.  Hope  might  be  ordered  to  deliver  up  Adrian 
Elias  and  John  Henry  to  their  father  in  order  that  they  might  be 
brought  up  and  educated  in  England,  and  on  the  7th  of  June,  1854, 
the  Lord  Chancellor  made  an  order  in  that  suit  that  Mr.  and  Mrs. 
Hope  should  take  all  such  steps  as  might  be  necessary  and  proper 
according  to  the  law  of  France  to  cause  the  children  to  be  delivered  up 
to  their  father,  but  that  he  should  permit  Mrs.  Hope  to  have  access  to 
them  at  all  reasonable  times  (See  4  De  G.,  M.  &  G.  329).  Mrs.  Hope 
presented  a  petition  of  appeal  to  the  House  of  Lords  from  this  order. 
In  the  meantime,  by  a  decree  of  the  Cour  de  Premiere  Instance  at 
Paris,  dated  the  21st  of  December,  1854,  it  was  directed  that  the  order 


§04  HOPE    V.    HOPE.  [chap.  XYI. 

of  the  Lord  Chancellor  should  be  carried  into  execution,  but  that  pend- 
ing Mrs.  Hope's  appeal  the  children  should  be  placed  at  a  school  in 
Paris,  where  both  their  father  and  mother  should  have  liberty  to  see 
them.  Mrs.  Hope  appealed  against  this  order  to  the  Cour  Imperi- 
ale  ;  but  before  either  appeal  came  on  to  be  heard  an  arrangement 
was  made  between  her  and  her  husband  for  the  settlement  of  all 
matters  in  dispute,  and  ultimatel}-  an  agreement  was  drawn  up  in  the 
French  language,  which  was  executed  by  Mrs.  Hope  at  Paris,  on  the 
20th  of  March,  1855,  and  bj-  Mr.  Hope  m  London  on  the  22d.  The 
bill  set  out  a  translation  of  the  agreement,  which  was  in  tlie  following 
terms  :  — 

"By  a  judgment  deUvered  by  the  Civil  Tribunal  of  the  Seine,  dated 
27th  December,  1S54,  it  was  declared  that  tliere  should  be  executed  in 
France  a  judgment  of  the  Lord  Chancellor  of  England,  which  ordered 
that  Mrs.  Hope  should  be  bound  to  deliver  up  to  Mr.  Hope  the  two 
sons  issue  of  their  marriage,  Messrs.  Adrian  Elias  and  Jean  Henry 
Hope.  Mrs.  Hope  has  appealed  against  this  order ;  but,  for  the  pur- 
pose of  putting  an  end  to  these  painful  proceedings,  the  following 
terms  have  been  entered  into  by  the  parties :  1.  Mrs.  Hope  will  im- 
mediately deliver  up  to  Mr.  Hope  Mr.  Adrian  Elias  Hope  ;  Mr.  Jean 
Henry  Hope  will  remain  under  the  care  of  his  mother.  2.  Mrs.  Hope 
will  abandon  her  suit  for  a  divorce  instituted  against  Mr.  Hope  in  the 
English  courts,  and  for  that  purpose  she  binds  herself  to  sign  without 
delay  all  such  deeds  and  documents  as  may  be  required.  3.  Mrs.  Hope 
undertakes  not  to  oppose  the  suit  for  a  divorce  instituted  against  her  by 
Mr.  Hope  in  the  English  courts,  but  on  the  contrary  to  facilitate  the  ob- 
taining such  divorce.  It  is  well  understood  that  Mrs.  Hope  shall  be  able 
to  see  her  children,  to  write  to  them,  and  to  receive  letters  from  them. 
4.  Mr.  Hope  agrees  to  pay  in  France  to  Mrs.  Hope  the  annual  sum  of 
75,000  francs  in  accordance  with  the  decision  of  the  Px-clesiastical 
Court,  to  be  paid  quarterly  and  in  advance.  5.  Mr.  Hope  undertakes 
to  pay,  firstly,  the  expenses  incurred  in  England  by  Mrs.  Hope,  and  sec- 
ondly, ^Irs.  Hope's  debts  in  France,  but  on  condition  tliat  such  debts 
shall  not  exceed  the  sum  of  60,000  francs.  These  payments  shall  be 
made  by  the  hands  of  Mr.  Hope's  agents.  6.  With  regard  to  any  ac- 
counts that  may  he  unsettled  between  Mr.  and  Mrs.  Hope,  as  well  as  the 
handing  over  to  her  any  articles  that  may  belong  to  her,  the  parties 
agree  to  leave  the  matter  to  be  settled  by  Messrs.  Paillet  &  Duvergier, 
whose  decision  shall  ])e  final." 

In  pursuance  of  this  agreement  the  plaintiff  brought  Adrian  Elias 
Hope  to  England  and  delivered  him  up  to  j\Ir.  Hope,  John  Henry 
remaining  with  lier  at  Paris,  and  she  withdrew  her  appeals  both  in  this 
country  and  in  France.  IMrs.  Hope's  suit  in  the  Ecclesiastical  Court 
and  the  responsive  allegation  of  Mr.  Hope  were  both  dismissed. 

The  bill  went  on  to  allege  that  the  plaintiff  had  in  all  respects 
performed  her  part  of  the  agreement,  but  that  the  defendant  had  re- 
fused to  perform  his  part  of  it ;  that  he  refused  the  plaintiff  all  access 


SECT.  III.]  HOPE   V.    HOPE.  805 

to  the  children,  though  she  had  frequentl}'  desired  to  visit  them,  and 
that  he  had  paid  no  part  whatever  of  the  promised  annuity,  of  the  costs 
incurred  by  the  plaintiff,  or  of  tlie  sura  on  account  of  her  debts.  The 
bill  praved  a  specific  performance  of  the  agreement  of  March,  1855, 
that  the  plaintiff  might  have  access  to  her  children  at  all  reasonable 
times,  that  an  account  might  be  taken  of  the  arrears  of  the  allowance 
stipulated  for  by  the  agreement,  and  that  the  defendant  might  be 
ordered  to  pay  such  arrears  and  to  give  security  for  future  payments 
and  to  pay  the  cost  of  the  suit. 

The  defendant  demurred  to  this  bill  for  want  of  equity,  and  the 
Master  of  the  Rolls  overruled  the  demurrer  (22  Beav.  351).  An  appeal 
by  the  defendant  came  to  be  heard  before  the  Lords  Justices  in  July, 
1856,  and  their  Lordships  having  intimated  an  opinion  that  if  the 
dennu-rer  were  allowed  leave  must  be  given  to  amend,  it  was  arranged 
that  the  demurrer  should  be  allowed  without  prejudice  to  any  question 
and  with  leave  to  the  plaintiff  to  amend  her  bill,  and  that  if  the 
defendant  should  demur  again  the  demurrer  should  be  brought  directly 
before  the  Court  of  Appeal. 

Tlie  bill  accordingly  was  amended  by  introducing  statements  to  the 
following  effect :  That  the  defendant  resided  in  England,  and  that  by 
his  refusal  to  perform  his  part  of  the  agreement  the  plaintiff  was  re- 
duced to  destitution  — ^that  if  proceedings  could  be  instituted  in  the 
courts  of  Frnnppjj^^defendants  would  be  decreed  to  pay  the  allowance 
ai^^H~TEe""oniefsurnr^nentioned  in  the  agreement.  That  it  was  the 
in"tentwirof  both  parties~Tlmtr-bh«-agi:££me«^  should  be  valid  and 
binding  on  both  ot  them  m  England  as  well  as  in  France,  and  that  the 
plaintiff  had  acted  on  the  faith  of  its  being  so  binding.  That  by 
the  French  law  regard  would  be  had  to  the  circumstances  under  which 
the  agreement  was  entered  into,  and  that  it  would  be  carried  into  effect 
by  the  French  tribunals  against  the  defendant  if  he  were  still  a  resident 
in  that  country,  and  that  although  Monsieur  Paillet,  one  of  the  referees 
named  in  the'  agreement,  had  since  died,  the  plaintiff  was  willing  that 
it  should  be  carried  into  execution  in  any  manner  which  the  court  might 
direct.     The  defendant  again  demurred.^ 

Turner,   L.J.      This   is   a    suit   instituted   by   a  wife   against   her 
husband  for  the  specific  performance  of  an   agreement  entered   into 
between  them.     The  bill  has  been  met  by  a  general  demurrer  for  want 
of  equity.     In  the  course  of  the  argument  before  us,  my  learned  brother 
expressed  our  united  opinion,  that  if  the  law  of  this  country  only  was 
to  be  taken  into  consideration  in  determining  the  case,  tjie_agreemejit 
could  not  be  supported,  and  the  dejmirrer  musl_conse^uentlj:,be^^k- 
lowed,  and  we  stopped  the  reply  upon  that  point.     The^fintherco^^ 
eratlonlvnicEri  have  since  given  fo^th"e-Mbject"Tias^cdD&rmer"meTn~ 
that  opinion. 

1  Arguments  of  counsel  and  the  concurring  opinion  of  Knight  Bruce,  L.J.,  are 
omitted.  —  Ed. 


806  HOPE   V.   HOPE.  [chap.  XVI. 

But  it  was  argued  for  the  plaintiir,  in  support  of  the  bill,  that  in 
determining  this  case  the  law  of  France  ought  also  to  be  taken  into 
consuTeration,  — ^haTthe  agT^ment  in  TjueslTon  ought  to  be  considered 
as  an  agreement  entered  into,  or,  at  all  events,  to  be  performed  in 
France,  — that  it  is  ^rQlirl^^gniJ^^P'^'^'^  nf  hpincr  Rnforced  in  France,  and 
t.hf^t.  effect  ought  therefore  to  be  given  to  it  by  the  law~oI 
and  upon  these  points  we  reserved  our  judgment. 

Upon  carefully  examining  the  allegations  of  this  bill,  on  which  alone 
the  case,  being  before  us  upon  demurrer,  must  be  decided,  I  think  it 
far  from  clear  that  the  bill  alleges  such  a  case  as  would  in  strictness 
warrant  us  in  taking  the  law  of  France  into  consideration.  But  I 
should  not  feel  satisfied  to  dispose  of  the  case  finally  upon  that  ground, 
and  I  think  it  better,  therefore,  to  consider  it  upon  the  assumption  that 
the  law  of  France  is  to  be  taken  into  account,  and  that  the  agreement 
in  question  would,  according  to  that  law,  be  capable  of  being  enforced. 
Laying  aside,  then,  the  allegations  of  the  bill  which  point  to  the  intro- 
duction of  the  French  law  into  the  case,  the  bill  alleges  these  facts : 
[His  Lordship  stated  in  order  the  substance  of  the  allegations  in 
the  bill.] 

No  argument  was  addressed  to  us  on  the  plaintiff's  behalf  with 
reference  to  that  part  of  the  bill  which  applies  to  the  plaintiff's  having 
access  to  her  children,  and  seeks  for  relief  in  that  respect.  This  part 
of  the  plaintitTs  complaint,  if  well  founded,  is  properly  the  subject  of 
application  in  the  suit  in  which  the  order  for  access  has  been  made. 
That  order  having  been  made,  the  right  given  by  it  and  the  enforce- 
ment of  that  right  cannot,  as  I  apprehend,  under  an}'  circumstances 
appearing  upon  this  bill,  properl}'  be  made  the  subject  of  a  distinct  suit, 
and  the  bill  can  derive  no  support  from  the  introduction  into  it  of  this 
part  of  the  case.  The  question  is,  whether,  upon  the  assumption  whicli 
I  have  stated  as  to  the  French  law  being  taken  into  account,  the  bill 
can  in  other  resi^ects  be  maintained.  I  am  of  opinion  that  it  cannot, 
and  upon  these  grounds  :  1  think  that  when  the  courts  of  one  country 
are  called  upon  to  enforce  contracts  entered  into  in  another  country, 
the  question  to  be  considered  is  not  merely  wliether  the  contract  sought 
to  be  enforced  is  valid  according  to  the  laws  of  the  country  in  wliich  it 
was  entered  into,  but  whether  it  is  consistent  with  the  laws  and  policy 
of  the  country  in  which  it  is  sought  to  be  enforced.  A  contract  may 
be  good  by  the  law  of  another  country,  but  if  it  be  in  breach,  fraud,  or 
evasion  of  the  law  of  this  country,  or  contrary  to  its  policy,  the  courts 
of  this  country  cannot,  as  I  conceive,  be  called  upon  to  enforce  it. 
Now,  there  are  two  provisions  of  this  agreement  which,  as  it  seems  to 
me,  are  contrary  to  the  law  and  policy  of  this  country.  By  article  1  of 
the  agreement  one  of  the  children  is  to  remain  under  the  care  of  the 
plaintiff,  the  mother.  By  article  3  of  the  agreement,  Mrs.  Hope,  the 
plaintiff,  undertakes  "  not  to  oppose  the  suit  for  a  divorce  instituted 
against  her  by  Mr.  Hope  in  the  English  courts,  but,  on  the  contrary,  to 
facilitate  the  obtaining  such  divorce."  Are  these  provisions  consistent 
with  our  laws  and  polic}'? 


SECT.  III.]  HOPE    y.    HOPE.  807 

The  first  of  them  is  in  contravention  of  the  order  of  the  Lord 
Chancellor  stated  in  the  bill.  It  is  not  oul^'  in  contravention  of  that 
order,  but,  as  I  apprehend,  is  in  contravention  also  of  the  settled  law 
and  policj-  of  the  countr}-.  The  law  of  this  country  gives  to  the  father 
the  custodj-  of  the  children  and  the  control  over  them,  and  it  gives  him 
that  custody  and  control  not  for  his  own  gratification,  but  on  account 
of  his  duties  and  with  reference  to  the  public  welfare.  Lord  Eldon, 
speaking  upon  this  subject  in  Lord  St.  John  v.  Lady  St.  John,  11  Ves. 
631,  says  this  :  "  Then  how  is  it  as  to  the  children?  The  father  has 
control  over  them  by  the  law,  as  the  law  imposes  upon  him,  with  refer- 
ence to  the  public  welfare,  most  important  duties  as  to  them.  If  the 
husband  can  contract  with  his  wife,  who  cannot  by  law  contract  with 
him  (and  in  this  instance  the  contract  as  to  the  children  is  between  the 
husband  and  wife  only),  it  deserves  great  consideration,  before  a  court  of 
law  should  b}-  habeas  corpus  upon  a  unilateral  covenant,  as  the  Scotch 
call  it,  take  from  him  the  custody  and  control  of  his  children,  thrown 
upon  him  b}-  the  law,  not  for  his  gratification,  but  on  account  of  his 
duties,  and  place  them,  against  his  will,  in  the  hands  of  his  wife." 
And  again,  in  Lord  Westmeath's  Case,  Jac.  251,  Lord  Eldon,  upon 
habeas  corjius,  ordered  two  children  of  very  tender  years  to  be  delivered 
to  their  father,  notwithstanding  an  express  agreement  on  his  part 
that  they  should  reside  with  their  mother  and  be  educated  under  her 
care  and  superintendence.  I  know  of  no  authority  contravening  the 
doctrine  thus  laid  down  and  acted  upon  by  Lord  Eldon,  and  I  have  no 
doubt,  therefore,  that  this  first  article  of  the  agreement  is  repugnant 
both  to  the  law  and  policy  of  this  country.  That  there  may  be  circum- 
stances which  w^ould  justifj"  such  an  agreement  as  this  article  contains 
it  is  not  necessary  to  den}'.  No  such  circumstances  are  alleged  by 
this  bill. 

Then,  as  to  the  3d  article  of  the  agreement.  There  is  nothing  which 
the  courts  of  this  country  have  watched  with  more  anxious  jealousy, 
and  I  will  venture  to  say,  with  more  reasonable  jealousy,  than  contracts 
■which  have  for  their  object  the  disturbance  of  the  marital  relations. 
The  peace  of  families,  the  welfare  of  children,  depends,  to  an  extent 
almost  immeasurable,  upon  the  undisturbed  continuance  of  those  rela- 
tions ;  and  so  strong  is  the  policy  of  our  law  upon  this  subject,  that 
not  only  is  marriage  indissoluble,  except  by  the  legislature,  but  divorces 
a  mensd  et  thoro  are  granted  only  in  cases  of  cruelty  or  adultery. 
But  what  is  this  article  of  the  agreement?  That  the  wife  shall  not 
oppose  the  husband's  suit  for  a  divorce,  but,  on  the  contrary,  shall 
facilitate  the  obtaining  it.  I  can  conceive  nothing  more  contrary  to 
the  policy  of  our  law  than  this  provision  of  the  agreement.  It  is,  as  it 
seems  to  me,  repugnant  to  the  law,  both  as  to  the  object  which  it  has 
in  view  and  the  means  by  which  that  object  is  to  be  effected.  Its 
object  is  the  discontinuance  of  the  marital  relations  without,  so  far  as 
appears  by  this  bill,. any  suflScient  cause  for  the  purpose,  for  the  bill 
states  no  more  than  that  there  was  a  suit  by  the  plaintiff  for  a  divorce 


808  HOPE   V.    HOPE.  [chap.  XVI. 

and  evidence  taken  upon  it,  and  that  upon  that  evidence  the  responsive 
allegation,  the  purpose  of  which  is  not  stated,  was  dismissed  ;  and  the 
means  by  which  this  object  is  to  be  eflfected  are,  as  I  understand  this 
agreement,  by  evading  the  due  administration  of  justice  in  the  courts 
of  this  country.  Much  of  the  argument  on  the  part  of  the  plaintiff  was, 
and  most  properl}',  addressed  to  this  pait  of  the  case.  It  was  said  that 
the  wife's  assistance  in  obtaining  the  divorce  could  be  of  no  avail,  for 
that  the  Ecclesiastical  Court  would  not  in  such  cases  act  upon  the 
consent  of  the  parties  ;  but  there  are  other  modes  of  rendering  assist- 
ance than  b}'  consent,  —  modes,  too,  of  which  the  court  ma}'  have  no 
cognizance.  But  then  it  was  said  that  the  whole  of  the  evidence  had 
been  taken  in  the  suit,  and  that  there  could,  therefore,  be  no  deception 
upon  the  court ;  but  it  is  one  thing  to  take  evidence,  another  to  dissect 
and  scrutinize  it  and  lay  it  before  the  court.  It  was  further  said  on  the 
part  of  the  plaintiff,  that  the  proposed  divorce  would  amount  to  no 
more  than  a  separation,  and  that  the  law  of  this  country  recognizes 
separations  between  husband  and  wife  ;  but  I  am  ver^'  far  indeed  from 
being  satisfied  that  the  law  of  this  country  would  recognize  a  separa- 
tion upon  such  an  agreement  as  this  between  the  husband  and  wife 
alone,  and  besides  there  are  consequences  which  attach  to  a  sentence 
of  divorce  which  do  not  belong  to  a  separation  b}'  agreement  merely. 
Giving  full  weight,  however,  to  all  these  arguments  on  the  part  of  the 
plaintiff,  they  furnish  no  answer  to  the  objection  that  this  is  an  agree- 
ment for  evading  the  due  administration  of  justice  in  England. 

Lastly,  it  was  urged  on  the  plaintiff's  behalf,  that  whatever  objection 
there  ma}'  have  been  to  this  agreement  in  its  inception,  what  remains 
to  be  performed  is  legal  and  unobjectionable ;  but  to  hold  that  an 
agreement  so  objectionable  as  that  this  court  would  not  perform  it,  can 
be  rendered  capable  of  performance  by  the  objectionable  parts  of  it 
having  been  carried  into  execution,  is  a  doctrine  to  which  I  cannot 
assent. 

Upon  these  grounds,  without  entering  more  into  the  other  points 
which  were  argued  before  us,  my  opinion  is  that  this  demurrer  ought 
to  be  allowed.^ 

^  Ace.  Grell  v.  Levy,  16  C.  B.  n.  s.  7  (champertous  agreement);  Rousillon  v. 
Rousillon,  14  Ch.  D.  351  (contract  in  restraint  of  trade);  Rofjers  v.  Kaincs,  (Ky. ), 
38  S.  W.  483  (agreement  to  pay  attorney's  fee);  Rowland  v.  B.  &  L.  Assoc,  115  K  C. 
825,  18  S.  E.  965  (unconscionable  agreement).  —  Ed. 


BECT.  III.]  GEEENWOOD   V.    CURTIS.  809 

GREENWOOD  v.   CURTIS. 
Supreme  Judicial  Court  of  Massachusetts.     1810. 

[Reported  6  Massachusetts,  358.] 

Parsons,  C.  J.^  This  action  is  assumpsit  on  a  promissorj'  note  for 
the  delivery  of  slaves,  and  tlie  payment  of  bars,  which  are  an  African 
currenc}',  and  also  on  an  insinnil  coinjyutassent.  A  verdict  has  been 
found  for  the  plaintiff,  upon  a  trial  on  the  general  issue,  subject  to 
the  opinion  of  the  court  upon  a  case  stated  by  the  parties. 

Two  objections  have  been  made  to  the  verdict  b}^  the  counsel  for  the 
defendant.  That  the  letters  of  Hippias  were  improperly  admitted  in 
evidence  ;  —  and  if  they  were  not,  that  no  action  can  be  maintained  in 
this  State  on  a  breach  of  either  of  the  supposed  promises.^  .  .  . 

The  second  objection,  that  no  action  upon  either  of  the  promises 
alleged  can  be  maintained  in  this  State,  is  principally  relied  on  by  the 
defendant.  The  argument  of  his  counsel  has  been  supported  with 
much  ingenuity.  The  slave  trade,  he  has  argued,  is  or  has  been  pro- 
hibited by  a  statute  of  the  Commonwealth,  in  the  preamble  of  which  it 
has  been  declared  to  be  an  unrighteous  commerce  ;  and  he  attempted 
to  show  that  in  itself  it  was  immoral.  This  objection  deserves  much 
consideration. 

By  the  common  law,  upon  principles  of  national  comity,  a  contract 
made  in  a  foreign  place,  and  to  be  there  executed,  if  valid  by  the  laws 
of  that  place,  may  be  a  legitimate  ground  of  action  in  the  courts  of 
this  State  ;  although  such  contract  may  not  be  valid  by  our  laws,  or 
even  may  be  prohibited  to  our  citizens.  Thus  in  States  where  a 
greater  rate  of  interest  is  allowed  than  by  our  statute,  a  contract  se- 
curing a  greater  rate  of  interest,  but  agreeably  to  the  law  of  the  place, 
may  be  sued  in  our  courts,  where  the  plaintiff  shall  recover  the  stipu- 
lated interest.  .  , 

This  rule  is  subject  to  two  exceptions.  7  0«£lJ.s,  when  the  Common- 
wealtji_ojiJis--eitizens-Ttray---be--ij4i]rcd  py giving  legal  effect  tojhe 
contract  by  a  judgment  in  oul  courts.  —  Thus  a  contract  for  the  sale 
and  delivery  ofmerchindise.  in  a  State  where  such  sale  is  not  prohibi- 
ted,  may  be  sued  in  another  State  where  such  merchandise  cannot  be 
lawfully  imported.  But  if  the  delivery  was  to  be  in  a  State  where  the 
importation  was  interdicted,  there  the  contract  could  not  be  sued  in 
the  interdicting  State  ;  because  the  giving  of  legal  effect  to  such  a  con- 
tract would  be  repugnant  to  its  rights  and  interest.  —  Another  exception 
is,  when  the  giving  of  legal  effect  to  the  contract  would  exhibit  to  the 
citizens  of  the  State  an  example  pernicious  and  detestable.  —  Thus  if 
a  foreign  State  allows  of  marriages  incestuous  by  the  law  of  nature,  as 
between  parent  and  child,  such  marriage  could  not  be  allowed  to  have 

1  Sedgwick,  J.,  prepared  a  dissenting  opinion,  for  which  see  6  Mass.  362  n.  —  Ed. 

2  Only  so  much  of  the  case  as  discusses  the  second  objectiou  is  given.—  Ed. 


810  GREENWOOD   V.   CURTIS.  [CHAP.    XVI, 

any  validity  here.  But  marriages  not  naturally  unlawful  but  prohib- 
ited b}'  the  law  of  one  State  and  not  of  another,  if  celebrated  where 
they  are  not  prohibited,  would  be  holden  valid  in  a  State  where  the}*  are 
not  allowed.  As  in  this  State  a  marriage  between  a  man  and  his  de- 
ceased wife's  sister  is  lawful,  but  it  is  not  so  in  some  States ;  such  a 
marriage  celebrated  here  would  be  held  valid  in  any  other  State,  and 
the  parties  entitled  to  the  benefits  of  the  matrimonial  contract.  — 
Another  case  may  be  stated,  as  within  this  second  exception,  in  an 
action  on  a  contract  made  in  a  foreign  State  by  a  prostitute,  to  recover 
the  wages  of  her  prostitution.  This  contract,  if  lawful  where  it  was 
made,  could  not  be  the  legal  ground  of  an  action  here ;  for  the  con- 
sideration is  confessedly  immoral,  and  a  judgment  in  support  of  it 
would  be  pernicious  from  its  example.  And  perhaps  all  cases  may  be 
considered  as  within  this  second  exception,  which  are  founded  on  moral 
turpitude,  in  respect  either   of     the  consideration  or  the  stipulation. 

Before  the  present  case  can  be  compared  with  this  rule,  including 
the  exception  to  it,  the  merits  of  it  must  be  ascertained. 

In  South  Carolina  it  was  lawful  to  purchase  slaves  on  the  coast 
of  Africa,  and  to  import  them  as  merchandise  into  that  State.  And 
it  does  not  appear  that  this  purchase  and  importation  was  unlawful 
at  Rio  Pongos.  The  original  contract  was  made  at  Rio  Pongos, 
for  the  purpose  of  obtaining  slaves  to  transport  to  Charleston. 
The  account  was  stated  at  Rio  Pongos,  in  which  the  defendant 
acknowledged  a  balance  due  in  cash,  which  was  assented  to  by  the 
plaintiff  in  Charleston.  Whether  either  of  the  contracts  is  to  be 
governed  b}-  the  law  of  Rio  Pongos  or  of  South  Carolina  is  imma- 
terial :  for  in  either  case  it  does  not  appear  that  either  of  them  was 
invalid  lege  loci.  Either  of  them,  therefore,  may  be  the  ground  of 
an  action  in  this  State,  unless  it  come  within  one  of  the  exceptions 
to  the  rule,  even  if  a  contract  of  this  nature  made  by  the  citizens 
of  this  State  should  be  void.  To  maintain  the  action,  if  it  be  not 
within  the  exceptions,  is  enjoined  on  us  by  the  comit}'  we  owe  an- 
other Sate.  And  to  entitle  the  defendant  to  retain  in  his  hands  the 
debt  which  he  justly  owes,  as  between  the  parties,  he  ought  clearly 
to  show  some  principle  by  which  he  may  defend  himself  in  dishon- 
estly retaining  this  property. 

We  do  not  perceive  any  injury  that  could  arise  to  the  rights  or  in- 
terests of  this  State  or  its  citizens,  if  either  of  the  contracts  had  been 
faithfully  executed  agreeably  to  the  terms  of  it.  It  was  made  abroad, 
by  persons  not  citizens  of  the  Commonwealth,  and  to  be  executed 
abroad,  having  no  relation  in  its  consequences  to  our  laws. 

The  defendant  therefore,  to  establish  his  defence,  must  bring  this 
case  within  the  second  exception  ;  and  show  that  the  action,  as  consid- 
ered by  the  laws  of  this  Commonwealth,  is  a  turpis  causa.,  furnishing  a 
pernicious  precedent,  and  so  not  to  be  countenanced.  This  upon 
public  principles  he  is  authorized  to  do,  notwithstanding  he  is  a  party 
to  all  the  moral  turpitude  of  the  contract. 


SECT.  III.]  GREENWOOD   V.    CURTIS.  811 

The  argument  is,  that  the  transportation  of  slaves  from  Africa  is 
an  immoral  and  vicious  practice,  and  consequenth'  that  an\'  contract 
to  purchase  slaves  for  that  purpose  is  base  and  dishonest,  and  cannot 
be  the  foundation  of  an  action  here  within  the  principle  of  comit}* 
adopted  by  the  common  law.  This  objection  maj-  appl}-  to  the 
counts  on  the  note  but  not  to  the  count  on  the  insimul  computassent. 

Laying  the  counts  on  the  note  out  of  the  case,  we  shall  consider 
the  objection  of  moral  turpitude,  so  far  as  it  affects  the  count  on 
the  insimul  comjjutassent :  and  we  are  satisfied  that  the  objection 
does  not  apply  to  the  contract  averred  in  this  count ;  there  being 
nothing  immoral  in  the  consideration  on  the  plaintiffs  part,  or  m 
the  stipulation  made  by  the  defendant. — If  a  Charleston  merchant 
should  send  a  cargo  of  merchandise  to  Africa,  for  the  purpose  of 
there  selling  it,  and  with  the  proceeds  to  purchase  slaves  ;  and  if 
the  cargo  be  accordingly'  sold,  and  the  purchaser  agree  to  pay  for  it 
in  slaves  ;  and  he  afterwards  shall  refuse  or  neglect  to  deliver  the 
slaves,  but  makes  a  new  agreement  with  the  owner  to  pay  him  a 
sum  of  money  for  his  cargo,  an  action  can  unquestionably  in  our 
opinion  be  maintained  on  this  new  contract ;  and  the  illegal  con- 
tract, being  annulled  or  void,  cannot  affect  it.  —  So,  if  the  pur- 
chaser had  delivered  a  part  only  of  the  slaves  to  the  merchant,  and 
afterwards  agrees  with  him  to  pay  the  balance  in  cash,  we  see  no 
objection  to  an  action  to  recover  this  balance  in  cash,  if  the  pur- 
chaser refuse  to  pa}'  it. 

In  the  present  case  the  defendant  having  delivered  a  part  only 
of  the  slaves,  and  having  become  a  creditor  of  the  plaintiff  for  sup- 
plies furnished  to  his  use,  states  his  account,  in  which  after  deduct- 
ing the  slaves  delivered  and  the  supplies  furnished,  he  acknowledges 
a  balance  in  cash,  and  the  plaintiff,  having  assented  to  the  account, 
demands  the  balance  in  this  action  we  see  no  legal  objection  to 
his  recovery.  The  consideration  of  the  implied  promise  arising 
from  this  settlement  is  the  sale  of  the  cargo,  which  involves  in  it 
no  moral  turpitude  ;  neither  is  the  performance  of  the  promise  by 
paying  the  balance  in  cash  immoral.  And  although  on  the  same 
day  the  defendant,  in  consideration  of  this  balance  due  in  cash, 
promises  b}'  his  note  to  discharge  it  principally  in  slaves,  and  the 
small  remainder  in  cash  ;  j'et  this  promise  is  no  bar  to  an  action 
by  the  plaintiff  on  the  account,  even  if  the  promise  by  the  note  is 
here  considered  as  legal  and  a  fortiori  if  it  is  considered  as  void 
for  its  immorality.  —  It  is  true  if  the  defendant  voluntarily  dis- 
charged the  note,  the  balance  of  the  account  could  not  afterwards 
be  recovered,  for  the  consideration  of  it  was  discharged  by  the  pay- 
ment of  the  note :  nor  could  the  payment  of  the  note  be  recovered 
back,  for  potior  est  conditio  possidentis. 

In  this  case  the  defendant  having  acknowledged  a  balance  of  cash 
in  his  hands,  the  property  of  the  plaintiff;  although  it  came  into 
his  hands  from   the    sale    of    the  merchandise,    for  which    he  was  to 


812  FONSECA   V.   CUNAED    STEAMSHIP    CO.  [CHAP.  XVI. 

pay  ill  slaves,  but  did  not,  this  balance  as  between  the  parties  is 
justly  due  the  plaintiff ;  and  unless  the  principles  of  public  policy 
against  the  action  upon  the  insimul  computassent  are  manifest,  we 
cannot  decide  that  the  defendant  shall  not  be  held  to  pay  what  he 
justly  owes. 

In  this  view  of  the  case  we  are  satisfied  that  the  action  is  main- 
tained on  the  insimul  computassent^  and  that  the  plaintiff  may  take 
his  verdict  on  that  count,  and  have  judgment  entered  upon  it. 

Judgm^ent  according  to  verdict.^ 


FONSECA   V,   CUNARD   STEAMSHIP  CO. 

Supreme  Judicial  Court  of  Massachusetts.     1891. 
[Reported  153  Massachusetts,  553.] 

The  plaintiff  took  passage  on  the  defendant's  steamer  from  Liverpool 
to  Boston.  He  had  with  him  on  the  ship  his  trunk,  containing  articles 
of  clothing  and  personal  property  reasonable  and  proper  for  an  ocean 
traveller  to  carry  as  personal  baggage,  all  of  which  w^ere  entirel}'  ruined 
on  the  voyage  by  the  negligence  of  the  defendant.  When  the  plaintiff 
engaged  his  passage  in  London,  he  received  a  passage  ticket  from  the 
defendant's  agent  there.  This  ticket  consisted  of  a  sheet  of  paper  of 
large  quarto  size,  the  face  and  back  of  which  were  covered  with  written 
and  printed  matter.  Upon  the  back,  among  other  printed  matter, 
was  the  following:  "The  company  is  not  liable  for  loss  of  or  injury 
to  the  passenger  or  his  luggage,  or  delay  in  the  voyage,  whether  arising 
from  the  act  of  God,  the  Queen's  enemies,  perils  of  the  sea,  rivers,  or 
navigation,  restraint  of  princes,  rulers,  and  peoples,  barratry,  or  negli- 
gence of  the  company's  servants  (whether  on  board  the  steamer  or 
not),  defect  in  the  steamer,  her  machinery,  gear,  or  fittings,  or  from 
any  other  cause  of  whatsoever  nature." 

The  judge,  upon  these  facts,  found  and  ruled  "  that  the  contract 
was  a  British  contract ;  that,  by  the  English  law,  a  carrier  may  by 
contract  exempt  himself  from  liability,  even  for  loss  caused  by  his 
negligence ;  that  in  this  case,  as  the  carrier  has  so  attempted, 
and  the  terms  are  broad  enough  to  exonerate  him,  the  question 
remains  of  assent  on  the  part  of  the  plaintiff.  This  has  been  decided 
in  Massachusetts  to  be  a  question  of  evidence,  in  which  the  lex  fori 
is  to  govern  ;  that  although  it  has  been  decided  that  the  law  con- 
clusively prosunu's  that  a  consignor  knows  and  assents  to  the  terms  of 
a  bill  of  lading  or  a  shipping  receipt  which  he  takes  without  dissent, 
j'et  a  passenger  ticket,  even  though  it  be  called  a  '  contract  ticket,'  does 
not  stand  on  the  same  footing,  that  in  this  case  assent  is  not  a  coudu- 

1  Ace.  Rouudtree  i;.  Baker,  52  111.  241.  —  Ed. 


SECT.  III.]  THE    KENSINGTON.  813 

sion  of  law,  and  is  not  proved  as  a  matter  of  fact."  Upon  the  whole 
case,  the  judge  ruled  that  the  defendant  company  was  not  exempted 
from  liability  by  the  contract  ticket,  and  found  for  the  plaintiff. 

If  the  rulings  were  wrong,  the  verdict  was  to  be  set  aside,  and  judg- 
ment entered  for  the  defendant ;  otherwise,  the  judgment  was  to  be 
entered  on  the  finding.^ 

Knovvlton,  J.  .  .  .  We  are  of  opinion  that  the  ticket  delivered  to 
plaintiff  purported  to  be  a  contract,  and  that  the  defendant  corporation 
had  a  right  to  assume  that  he  assented  to  its  provisions.  All  these 
provisions  are  equally  binding  on  him  as  if  he  had  read  them. 

The  contract  being  valid  in  England,  where  it  was  made,  and  the 
plaintiff's  acceptance  of  it  under  the  circumstances  being  equivalent  to 
an  express  assent  to  it,  and  it  not  being  illegal  or  immoral,  it  will  be 
enforced  here,  notwithstanding  that  a  similar  contract  made  in  Massa- 
chusetts would  be  held  void  as  against  public  policy.  Greenwood  v. 
Curtis,  6  Mass.  358  ;  Forepaugh  v.  Delaware,  Lackawanna,  &  Westr 
ern  Railroad,  128  Penn.  St.  217,  and  cases  cited;  In  re  Missouri 
Steamship  Co.,  42  Ch.  D.  321,  326,  327  ;  Liverpool  &  Great  Western 
Steam  Co.  v.  Phenix  Ins.  Co.,  129  U.  S.  397. 

Judgynent  for  the  defendant.'^ 


THE   KENSINGTON. 

Supreme  Court  of  the  United  States.     1902. 

[Reported  183  United  States,  263.] 

White,  J.^  The  libel  by  which  this  action  was  commenced  sought 
to  recover  the  value  of  passengers'  baggage  which  it  was  alleged  the 
ship  had  wrongfully  failed  to  deliver.  The  facts  essential  to  be  borne 
in  mind,  in  order  to  approach  the  questions  arising  for  decision,  are 
as  follows :  — 

The  International  Navigation  Company,  a  New  Jersey  corporation, 
on  December  6,  1897,  at  the  office  of  its  Paris  agency,  issued  to  Mrs. 
and  Miss  Bleecker,  the  wife  and  daughter  of  an  officer  of  the  United 
States  Navy,  a  steamer  ticket  for  a  voyage  from  Antwerp  to  New- 
York  on  the  Kensington,  a  steamer  in  the  control  of  the  company, 
advertised  to  sail  from  Antwerp  on  December  the  11th.  The  ticket 
was  delivered  to  Mrs.  Bleecker,  who  at  the  time  made  part  payment  of 
the  passage  money.  The  baggage  of  the  two  passengers  was  shipped 
by  rail  to  Antwerp,  to  the  care  of  the   agent  of  the  company  there. 

^  The  statement  of  facts  has  been  condensed,  and  part  of  the  opinion  omitted.  —  Ed. 
2  Ace.  Forepaugh  v.  Del.  L.  &  W.   R.    R.,   128   Pa,  217,  printed  ante  Vol.  I.  p. 
131. —  Ed. 

8  Part  of  the  opinion  is  omitted.  —  Ed. 


814  THE    KENSINGTON.  [CHAP.  XVI. 

Mrs.  Bleecker,  at  Antwerp,  on  the  10th  of  December,  paid  the  remain- 
der of  the  passage  money,  and  it  was  entered  on  the  ticket.  The  bag- 
o-ao-e  having  in  the  meanwhile  been  received,  the  charges  which  the 
agent  at  Antwerp  had  advanced  were  refunded  and  a  receipt  was 
issued.  It  was  stated  therein  that  the  value  of  the  baggage  was 
unknown,  and  that  it  was  shipped  subject  to  the  conditions  contained 
in  the  company's  steamer  ticket  and  bill  of  lading.  Mrs.  Bleecker  and 
her  daughter  embarked,  and  the  steamer  sailed  on  the  Uth  of  Decem- 
ber.    The  ticket  was  subsequently  taken  up  by  the  purser. 

The  baggage  was  stowed  in  what  was  known  as  number  2,  upper 
steerage  deck.  The  voyage  was  an  exceptionally  rough  one,  the  ship, 
encountering  heavy  seas  and  winds,  rolled  from  38  to  45  degrees  on 
either  side  during  the  height  of  the  gale,  and  was  obliged  to  heave  to  for 
about  fifteen  hours.  On  arrival  at  New  York  the  baggage  was  found 
to  be  totally  destroyed.  By  constant  shifting  it  had  been  reduced  to 
an  almost  unrecognizable  mass,  was  commingled  with  debris  of  broken 
china  and  straw,  and  covered  with  water.  The  first  was  occasioned  by 
stowing  crates  of  china  in  the  same  compartment.  The  presence  of  the 
water  was  explained  by  the  fact  that  an  exhaust  pipe  which  passed 
through  the  compartment  had  been  broken  by  the  shifting  of  the  con- 
tents of  the  compartment,  and  hence  the  exhaust  escaped  into  the 
compartment. 

There  is  no  possible  view  which  can  be  taken  of  the  facts  b}-  which 
the  loss  of  the  baggage  was  brought  about,  by  which  the  ship  could  be 
held  responsible  if  the  steamer  ticket  was  in  and  of  itself  a  complete 
contract,  and  all  the  conditions  or  exceptions  legibl}-  printed  on  the 
face  thereof  were  lawful.  The  ticket  was  signed  by  the  agent  of  the 
company  at  Paris,  was  countersigned  by  the  agent  at  Antwerp,  but 
was  not  signed  by  either  Mrs.  Bleecker  or  her  daughter.  One  of  the 
conditions  printed  on  the  ticket  provided  that  there  should  be  no  lia- 
bilitv  to  each  passenger,  ''under  any  circumstances,"  beyond  the  sum 
of  250  francs,  "at  which  such  baggage  is  hereby  valued,"  unless  an 
increased  value  be  declared  and  an  additional  sum  paid  as  provided  by 
the  condition. 

There  was  no  proof  tending  to  show  that  at  the  time  the  ticket 
was  issued  the  attention  of  Mrs.  Bleecker  or  her  daughter  was  called  to 
the  fact  that  it  embodied  exceptional  stipulations  relieving  the  company 
from  liability,  or  that  such  conditions  were  agreed  to,  except  in  so  far 
as  a  meeting  of  minds  on  the  subject  may  be  inferred  from  the  fact  of 
the  delivery  of  the  ticket  b}'  the  company,  and  its  acceptance,  and  that 
it  contained  on  its  face,  in  small  but  legible  type,  among  others,  the 
stipulations  which  are  relied  upon.  The  testimony  of  Mrs.  Bleecker 
and  her  daughter  was  that  when  the  ticket  was  received  it  was  put 
aside  without  reading  it,  and  that  it  was  not  subsequently  examined 
before  it  was  delivered  to  the  ship's  otlicer.  The  District  Court  held 
that  the  loss  of  the  baggage  was  attributable  to  bad  stowage  ;  that  the 
ticket  and  the  conditions  printed  on  it  were  a  contract  binding  upon 


SECT.  III.]  THE    KENSINGTON.  815 

the  parties,  so  far  as  the  conditions  were  lawful.  The  conditions 
generally  relieving  from  liability  for  negligence  were  held  to  be  void, 
but  the  stipulation  as  to  the  value  of  the  baggage  was  held  valid  ; 
recovery  was  allowed  onl}-  for  the  equivalent  of  250  francs  to  each. 
88  Fed.  331. 

On  appeal  the  Circuit   Court   of  Appeals   for  the    Second  Circuit 
afBrined  the  judgment.     36  C.  C.  A.  533,  94  Fed.  885. 

Tlie  case  by  the  ahowance  of  a  writ  of  certiorari  is  here  for  review. 
The  District  Court  held,  although  the  condition  of  the  weather  might 
account  for  the  shifting  of  the  baggage,  that  result  could  also  have 
arisen  from  its  bad  stowage  ;  and,  in  the  absence  of  all  proof  by  the 
ship  that  the  baggage  had  been  properly  stowed,  when  such  proof  was 
peculiarly  within  its  reach,  the  loss  must  be  presumed  to  have  arisen 
from  the  imperfect  stowage.  The  Circuit  Court  of  Appeals,  while  in 
effect  agreeing  to  this  conclusion,  in  addition  found  that  there  was 
proof  in  the  record  tending  to  sustain  the  conclusion  that  the  baggage 
had  been  improperly  stowed,  and  that  no  proof  even  tending  to  rebut 
this  testimony  had  been  offered  by  the  company.  As  in  the  argument 
at  bar  the  conclusion  of  the  court  below  on  this  subject  was  not 
seriously  questioned,  we  content  ourselves  with  saying  that,  as  a 
matter  of  fact,  we  find  them  to  be  sustained,  and  therefore  pass  from 
their  further  consideration. 

The  loss  of  the  baggage  being,  then,  attributable  to  improper 
stowage,  the  question  is,  Was  the  vessel  relieved  from  the  con- 
sequence of  its  fault  by  the  exceptions  contained  in  the  passenger 
ticket?  The  District  Court  decided  "  that  a  ticket  of  the  character 
above  described  for  a  transatlantic  passage  is  a  unilateral  contract, 
and,  like  a  bill  of  lading,  is  binding  upon  the  person  who  receives  it, 
so  far  as  its  provisions  are  reasonable  and  valid."  In  other  words,  the 
court  held,  although  there  was  no  proof  of  the  meeting  of  the  minds  of 
the  parties  upon  the  subject  of  exceptional  limitations  to  be  imposed 
upon  the  contract  of  carriage,  the  receipt  and  retention  of  the  ticket 
implied  a  unilateral  contract  embracing  the  exceptions  found  in  legible 
characters  on  the  face  of  the  ticket.  And  being  thus  a  part  of  the 
express  and  written  contract,  the  exceptions  would  be  enforced,  pro- 
vided they  were  just  and  reasonable.  The  Circuit  Court  of  Appeals  in 
effect  approved  these  views  of  the  District  Court. 

While,  apparently,  the  question  whether  there  was  a  unilateral 
contract  necessarily  arises  first  for  consideration,  such  is  not  the  case 
when  the  situation  of  the  record  is  taken  into  view.  For  should  we, 
in  disposing  of  this  question,  determine  that  the  rulings  of  the  court 
below  as  to  the  unilateral  contract  were  correct,  we  would  not  thereby 
be  relieved  from  deciding  whether  the  conditions  embodied  in  the 
contract  were  valid.  On  the  other  hand,  should  we  conclude  that 
the  conditions  relied  on  were  void,  there  will  be  no  occasion  to 
determine  the  question  of  contract.  We  hence  invert  the  logical 
order   of    consideration,    and   first   come   to   determine    whether   the 


816  THE    KENSINGTON.  [CIIAP.  XVI. 

conditions  enumerated  in  the  ticket  relieved  from  the  responsibility 
otherwise  resulting  from  the  bad  stowage  of  the  baggage.  In  doing  so 
we  shall,  of  course,  assume,  for  the  purpose  of  this  branch  of  the  case 
only,  that  the  conditions  relied  upon  were  a  part  of  a  unilateral  con- 
tract, and  were  binding  as  far  as  they  were  just  and  reasonable.  It 
is  apparent  if  the  carrier,  in  transporting  the  baggage,  was  governed 
by  the  act  of  February  13,  1893,  designated  as  the  Harter  Act,  any 
provision  in  the  ticket  exempting  from  liability  for  fault  in  loading  or 
stowage  was  void  because  inhibited  by  the  express  provisions  of  the 
statute.  27  Stat,  at  L.  445,  chap.  105.  As,  however,  the  view  which 
we  take  of  the  conditions  expressed  in  the  ticket  will  be  equally 
decisive,  whether  or  not  the  Harter  Act  concerns  the  carriage  of 
passengers  and  their  baggage,  it,  becomes  unnecessary  to  intimate  any 
opinion  as  to  whether  the  provisions  of  the  act  in  question  appl}'  to 
such  contracts.  The  exceptions  found  on  the  face  of  the  ticket  upon 
which  the  carrier  depends  are  as  follows  :  — 

''  (c)  The  shipowner  or  agent  are  not  under  any  circumstances 
liable  for  loss,  death,  injury,  or  delay  to  the  passenger  or  his  baggage 
arising  from  the  act  of  God,  the  public  enemies,  fire,  robbers,  thieves 
of  whatever  kind,  whether  on  board  the  steamer  or  not,  perils  of  the 
seas,  rivers,  or  navigation,  accidents  to  or  of  machinery,  boilers,  or 
steam,  collisions,  strikes,  arrest,  or  restraint  of  princes,  courts  of  law, 
rulers,  or  people,  or  from  any  act,  neglect,  or  default  of  the  ship- 
owner's servants,  whether  on  board  the  steamer  or  not,  or  on  board 
any  other  vessel  belonging  to  the  shipowner,  either  in  matters  afore- 
said or  otherwise  howsoever.  Neither  the  shipowner  nor  the  agent  is 
under  any  circumstances,  or  for  any  cause  whatever  or  however  arising, 
liable  to  an  amount  exceeding  250  francs  for  death,  injury,  or  delay 
of  or  to  any  passenger  carried  under  this  ticket.  The  shipowner  will 
use  all  reasonable  means  to  send  the  steamer  to  sea  in  a  seaworthy 
state  and  well-found,  but  does  not  warrant  her  seaworthiness. 

"  (d)  The  shipowner  or  agent  shall  not  under  any  circumstances 
be  liable  for  any  loss  or  delay  of  or  injury  to  passengers'  baggage 
carried  under  this  ticket,  bej'ond  the  sum  of  250  francs,  at  which 
such  baggage  is  hereby  valued,  unless  a  bill  of  lading  or  receipt  be 
given  therefor,  and  freight  paid  in  advance  on  the  excess  value  at 
the  rate  of  1  per  cent,  or  its  equivalent,  in  which  case  the  shi[)Owner 
shall  only  be  responsible  according  to  the  terms  of  the  shipowner's 
form  of  cargo  bill  of  lading,  in  use  from  the  port  of  departure." 

It  is  settled  in  the  courts  of  the  United  States  that  exemptions 
limiting  carriers  from  responsibility  for  the  negligence  of  themselves  or 
their  servants  are  both  unjust  and  unreasonable,  and  will  be  deemed 
as  wanting  in  the  elenient  of  voluntary  assent ;  and,  bcsuies^  that  such' 
__conditiaaa  are  in  coniri^^^witrh— purHtc  polic}'.  This  doctrine  was 
announced  so  long  ago,  and  has  been  so  frequentl}'  reiterated,  tliat  it  is 
elementary'.  We  content  ourselves  with  referring  to  the  cases  of  the 
Baltimore    &   0-,   S.   W.  11.  Co.  v.  Voigt,  176  U.  S.  498,  505,  507, 


SECT.  III.]  ■  THE    KENSINGTON.  817 

and  Knott  v.  Botany  Worsted  Mills,  179  U.  S.  69,  71 ;  where  the 
previously  adjudged  cases  are  referred  to,  and  the  principles  by  them 
expounded  are  restated. 

True  it  is  that  by  the  act  of  February  13,  1893  (27  Stat,  at  L.  445, 
chap.  105),  known  as  the  Harter  Act,  already  adverted  to,  the  general 
rule  just  above  stated  was  modified  so  as  to  exempt  vessels,  when 
engaged  in  the  classes  of  carriage  coming  within  the  terms  of  the 
statute,  from  liability  for  negligence  in  certain  particulars.  But  while 
this  statute  changed  the  general  rule  in  cases  which  the  act  embraced, 
it  left  such  rule  in  all  other  cases  unimpaired.  Indeed,  in  view  of  the 
well-settled  nature  of  the  general  rule  at  the  time  the  statute  was 
adopted,  it  must  result  that  legislative  approval  was  by  clear  implica- 
tion given  to  the  general  rule  as  then  existing  m  all  cases  where  it  was 
not  changed. 

Testing  the  exemptions  found  in  the  ticket  by  the  rule  of  public 
policy,  it  is  apparent  that  they  were  void,  since  they  unequivocally 
sought  to  relieve  the  carrier  from  the  jnjtial  duty  of^furiiishinga^ea- 

worthy  vessel  forjlljieglectjnJoa4ingL9L?l5^ 

and  ever}'  fault  of  cpmmission  or  omission  on  the  part  of  the  carrier  or 
his  servajnts.  And  seeking  to  accomplish  these  results,  it  is  equally 
plain  that  the  conditions  were  void  if  their  legality  be  considered  solely 
with  reference  to  the  modifications  of  the  general  rule  created  by  the 
act  of  1893.  Knott  v.  Botany  Worsted  Mills,  179  U.  S.  69.  As,  how- 
ever, the  ticket  was  finally  countersigned  in  Belgium,  and  one  of  the 
conditions  printed  on  its  face  provides  that  "  all  questions  arising  here- 
under are  to  be  settled  according  to  the  Belgium  law,  with  reference  to 
which  this  contract  is  made,"  it  is  insisted  that  such  law  should  be  ap- 
plied, as  proof  was  offered  showing  that  the  law  of  Belgium  authorized 
the  conditions.  The  contention  amounts  to  this  :  Where  a  contract  is 
made  in  a  foreign  country,  to  be  execu ted  at  Ija^ jiLjmil-m- JJi^^'Koited 
State's,  the  law  of  the  foreign^  cmintry^^U^^er_J)yjts  jownj^^^  in 
virtue  of  the  agreement  of  the  contractTng  parties,  mus^be  enforcedjjy 
the  courts' of  the'  TTnTted^lStatesT^vefi^'aTlhou^ 

violaUon' oTthe" pubTfc  polIc>^'orthe"U nlFed' S tates^  Toltate  the  prop- 
ositionlsTwe'thinkT to  answer  it.  It  is  true,  as  a  general  rule,  that  the 
lex  loci  governs,  and  it  is  also  true  that  the  intention  of  the  parties  to  a 
contract  will  be  sought  out  and  enforced.  But  both  these  elementary 
principles  are  subordinate  to  and  qualified  by  the  doctrine  that  neither  by 
comity  nor  by  the  will  of  contracting  parties  can  the  public  policy  of  a 
country  be  set  at  naught.  Story,  Confl.  L.  §§  38,  244.  While,  as  said 
in  Knott  v.  Botany  Worsted  Mills,  the  previous  decisions  of  this  court 
have  not  called  for  the  application  of  the  rule  of  public  policy  to  the 
precise  question  here  arising,  nevertheless,  that  it  must  be  here  enforced 
is  substantiallv  determined  by  the  previous  adjudications  of  this  court. 
In  Liverpool  &  G.  W.  Steam  Co.  v.  Phenix  Ins.  Co.,  129  U.  S.  397,  the 
question  arose  whether  conditions  exempting  a  carrier  from  responsi- 
bility for  loss  caused  by  the  neglect  of  himself  or  his  servants  could  be 

52 


818  THE    KENSINGTON.  [CHAP.  XVI. 

enforced  in  the  courts  of  the  United  States,  the  bill  of  lading  having 
been  issued  in  New  York  by  a  British  ship  for  goods  consigned  to  Eng- 
land. Despite  the  fact  that  conditions  exempting  from  responsibility' 
for  loss  arising  from  negligence  were  valid  by  the  laws  of  New  York, 
and  would  have  been  upheld  in  the  courts  of  that  State,  it  was  decided 
that,  in  view  of  the  rule  of  public  policy  applied  by  the  courts  of  the 
United  States,  effect  would  not  be  given  to  the  conditions.  In  the  very 
nature  of  things,  the  premise,  upon  which  this  decision  must  rest,  is 
controlling  here,  unless  it  be  said  that  a  contract  made  in  a  foreign 
country,  to  be  executed  in  part  in  the  United  States,  is  more  potential 
to  overthrow  the  public  policy,  enforced  in  the  courts  of  the  United 
States,  than  would  be  a  similar  contract,  validly  made,  in  one  of  the 
States  of  the  Union.  Nor  is  the  suggestion  that  because  there  is  no 
statute  expressly  prohibiting  such  contracts,  and  because  it  is  assumed 
no  offence  against  morality  is  committed  in  making  tliem,  therefore 
they  should  be  enforced,  despite  the  settled  rule  of  public  policy  to  the 
contrary.  The  existence  of  the  rule  of  public  policy,  not  tlie  ultimate 
causes  upon  which  it  may  depend,  is  the  criterion.  The  precise  ques- 
tion has  been  carefully  considered  and  decided  in  the  district  courts  of 
the  United  States.  In  The  Guildhall,  58  Fed.  796,  it  was  held  that  a 
stipulation  in  a  bill  of  lading  issued  at  Rotterdam  on  goods  destined  to 
New  York, "exempting  the  carrier  from  liability  for  negligence,  would 
not  be  enforced  in  the  courts  of  the  United  States,  although  such  a 
condition  was  valid  under  the  law  of  Holland.  In  The  Glenmavis,  69 
Fed.  472,  the  same  rule  was  appUed  to  a  bill  of  lading  issued  in  Ger- 
many by  a  British  ship,  for  goods  consigned  to  Philadelphia.  Indeed, 
by  implication  the  question  is  controlled  by  statute.  We  have  previ- 
ously pointed  out,  under  the  assumi)tion  that  the  Harter  Act  does  not 
apply  to  the  carriage  of  the  baggage  of  a  passenger,  that  such  law  in 
effect  affirms  the  rule  of  public  policy  as  previously  existing  in  the  cases, 
where  no  change  was  made.  But  that  act  expressly  prohibits  carriers 
engaged  in  the  business  which  it  regulates  from  contracting,  even  in  a 
foreign  country,  for  a  shipment  to  the  United  States,  to  relieve  them- 
selves from  neglig3nce  in  cases  where  the  statute  does  not  do  so.  Knott 
V.  Botany  Worsted  Mills,  179  U.  S.  69.  The  theory,  then,  by  which 
alone  the  conditions  relied  on  in  this  case  can  be  enforced,  despite  the 
public  polic}'  which  governs,  in  the  courts  of  the  United  States,  reduces 
itself  to  this  :  Carriers  who  transact  a  class  of  business  where  they  are 
exempt  by  law,  in  many  cases,  from  the  consequences  of  the  neglect  of 
themselves  or  their  servants,  may  not  overthrow  public  policy  by  con- 
tracts made  in  a  foreign  country  for  a  shipment  to  the  United  States ; 
but  carriers  who  are  in  no  case  exempt  by  the  law  from  the  consequence 
of  their  neglect  may  do  so.  But  this  amounts  in  last  analysis  to  this  : 
The  lesser  the  immunity  from  negligence  the  greater  the  power  to  avoid 
the  consequences  of  negligence. 

The  general  exemptions  from  responsibility  for  negligence  which  the 
ticket  embodies  being  controlled  by  the  rule  enforced  in  the  courts  of 


SECT.  III.]  EMEKY   V.   BUKBANK.  819 

the  United  States,  and  being  therefore  void,  because  against  public 
policj',  we  come  to  consider  tlie  particular  provisions  contained  in  the 
ticket  with  reference  to  the  value  of  the  baggage  and  the  limit  of  re- 
covery, if  any,  arising  therefrom.  .  .  . 

In  view  of  the  nature  and  duration  of  the  voyage,  of  the  circum- 
stances which  may  be  reasonabl}'  deemed  to  environ  transatlantic  cabin 
passengers,  and  the  objects  and  purposes  which  it  may  also  be  justly 
assumed  the  persons  who  undertake  such  a  voyage  have  in  view,  we 
think  the  arbitrary  limitation  of  250  francs  to  each  passenger,  unaccom- 
panied by  any  right  to  increase  the  amount  b}'  an  adequate  and  reason- 
able proportional  payment,  was  void.  It  is  therefore  unnecessary  to 
decide  whether  the  ticket  delivered  and  received  under  circumstances 
disclosed  b}'  the  record  gave  rise  to  a  contract  embracing  the  excep- 
tions to  the  carrier's  liabiiit}'  which  were  stated  on  the  ticket.  We 
intimate  no  opinion  on  the  subject. 

The  decree  below  must  be  reversed,  and  the  cause  remanded  to  the 
District  Court,  with  directions  to  ascertain  the  actual  damage  sustained 
by  the  libellants,  and  to  enter  a  decree  in  their  favor  for  the  amount  of 
fBuch  damages,  with  interest  and  costs. 

And  it  is  so  ordered. 


EMERY  V.  BURBANK. 
Supreme  Judicial  Court  of  Massachusetts.     1895. 

[Reported  163  Massachusetts,  326.] 

Holmes,  J.  This  is  an  action  on  an  oral  agreement,  alleged  to  have 
been  made  in  Maine,  in  1890,  by  the  defendant's  testatrix,  Mrs.  Rum- 
ery,  to  the  effect  that,  if  the  plaintiff  would  leave  Maine  and  take  care 
of  Mrs.  Rumery,  the  latter  would  leave  the  plaintiff  all  her  property  at 
her  death,  and  also  would  put  four  thousand  dollars  into  a  house  which 
the  plaintiff  should  have.  At  the  trial  evidence  was  introduced  tend- 
ing to  prove  the  agreement  as  alleged.  The  presiding  justice  ruled 
that  the  action  could  not  be  maintained,  and  the  case  is  here  on  ex- 
ceptions. As  we  are  of  opinion  that  the  ruling  must  be  sustained 
under  St.  1888.  c.  372,  requiring  agreements  to  make  wills  to  be  in 
writing,  a  fuller  statement  of  the  facts  is  not  needful. 

There  is  no  doubt  of  the  general  principles  to  be  applied.  A  con- 
tract valid  where  it  is  made  is  valid  everywhere,  but  it  is  not  neces- 
sarily enforceable  everywhere.  It  may  be  contrary  to  the  policy  of  the 
law  of  the  forum.  Van  Reimsdyk  v.  Kane,  1  Gall.  371,  375;  Green- 
wood V.  Curtis,  6  Mass.  358;  Fant  v.  Miller,  17  Grat.  47,  62.  Or 
again,  if  the  law  of  the  forum  requires  a  certain  mode  of  proof,  the 
contract,  although  valid,  cannot  be  enforced  in  that  jurisdiction  with- 
out the  proof  required  there.     This  is  as  true  between  the  States  of  this 


820  EMERY   V.    BURBANK.  [CHAP.  XVI. 

Union  as  it  is  between  Massachusetts  and  England.  Hoadley  v.  North- 
ern Transportation  Co.,  115  Mass.  304,  306  ;  Pritchard  v.  Norton,  106 
U.  S.  124,  134  ;  Downer  v.  Chesebrough,  36  Conn.  39  ;  Kleeman  v. 
Collins,  9  Bush  (Ky.),  460;  Fant  v.  Miller,  17  Grat.  47;  Hunt  v. 
Jones,  12  R.  I.  262,  266;  Yates  o.  Thomson,  3  CI.  &  Fin.  544,  586, 
587  ;  Bain  v.  Whitehaven  &  Furness  Junction  Railway,  3  H.  L.  Cas.  1, 
19  ;  Leroux  v.  Brown,  12  C.  B.  801.  When  the  law  involved  is  a 
statute,  it  is  a  question  of  construction  whether  the  law  is  addressed  to 
the  necessary  constituent  elements,  or  legality,  of  the  contract  on  the 
one  hand,  or  to  the  evidence  b}^  which  it  shall  be  proved  on  the  other. 
In  the  former  case,  the  law  affects  contracts  made  within  the  jurisdic- 
tion, wherever  sued,  and  may  affect  only  them.  Drew  v.  Smith,  59 
Me.  393.  In  the  latter,  it  applies  to  all  suits  within  the  jurisdiction, 
wherever  the  contracts  sued  upon  were  made,  and  again  may  have  no 
other  effect.  It  is  possible,  however,  that  a  statute  should  affect  both 
validity  and  remedy  by  express  words,  and  this  being  so,  it  is  possible 
that  words  which  in  terras  speak  only  of  one  should  carry  with  them 
an  implication  also  as  to  the  other.  For  instance,  in  a  well-known 
English  case  Maule,  J.  said,  "The  fourth  section  of  the  statute  of 
frauds  entirely  applies  to  procedure."  And  on  this  ground  it  was  held 
that  an  action  could  not  be  maintained  upon  an  oral  contract  made  in 
France.  But  he  went  on,  "  It  may  be  that  the  words  used,  operating 
on  contracts  made  in  England,  i-enders  them  void."  Leroux  v.  Brown, 
12  C.  B.  801,  805,  807.  We  cite  the  language,  not  for  its  particular 
application,  but  as  a  recognition  of  the  possibility  which  we  assert. 

The  words  of  the  statute  before  us  seem  in  the  first  place,  and  most 
plainly,  to  deal  with  the  validity  and  form  of  the  contract.  "  No 
agreement  .  .  .  shall  be  binding,  unless  such  agreement  is  in  writ- 
ing." If  taken  literally,  they  are  not  satisfied  by  a  written  memoran- 
dum of  the  contract ;  the  contract  itself  must  be  made  in  writing. 
They  are  limited,  too,  to  agreements  made  after  the  passage  of  the  act, 
a  limitation  which  perhaps  would  be  more  likely  to  be  inserted  in  a  law 
concerning  the  form  of  a  contract  tlian  in  one  which  ou\y  changed  a 
rule  of  evidence.  But  we  are  of  opinion  that  the  statute  ought  not  to 
be  limited  to  its  operation  on  the  form  of  contracts  made  in  this  State. 
The  generality  of  the  words  alone,  "  no  agreement,"  is  not  conclusive. 
But  the  statute  evidently  embodies  a  fundamental  policy.  Tlie  ground, 
of  course,  is  the  prevention  of  fraud  and  perjury,  which  arc  deemed 
likely  to  be  practised  without  this  safeguard.  The  nature  of  the  con- 
tract is  such  that  it  naturall}'  would  be  performed  or  sued  upon  at  the 
domicil  of  the  promisor.  If  the  policy  of  Massachusetts  makes  void 
an  oral  contract  of  this  sort  made  within  the  State,  the  same  policy 
forbids  tliat  Massachusetts  testators  should  be  sued  here  upon  such 
contracts  without  written  evidence,  wherever  the}'  arc  made. 

If  we  are  right  in  our  understanding  of  the  policy  established  by  the 
legislature,  it  is  our  duty  to  carr\'  it  out  so  far  as  we  can  do  so  with- 
out coming  into  conflict  with  paramount  principles.      "  If  oral  evidence 


SECT.  III.j  EMERY   V.    BURBANK.  821 

were  offered  which  the  lex  fori  excluded,  such  exclusion,  being  founded 
on  the  desire  of  preventing  perjury,  might  claim  to  override  any  con- 
trary rule  of  the  lex  loci  contractus,  not  only  on  the  ground  of  its  being 
a  question  of  procedure,  but  also  because  of  that  reservation  in  favor 
of  any  stringent  domestic  policy  which  controls  all  maxims  of  private 
international  law."  Westlake,  Priv.  Int.  Law  (3d.  ed.),  §  208  ;  Whar- 
ton, Confl.  Laws  (2d.  ed.),  §  766. 

In  our  view,  the  statute,  whatever  it  expresses,  implies  a  rule  of 
procedure  broad  enough  to  cover  this  case.  It  is  not  necessary  to  de- 
cide exactly  how  broad  the  rule  may  be,  — whether,  for  instance,  if,  by 
some  unusual  chance,  a  suit  should  happen  to  be  brought  here  against 
an  ancillary  administrator  upon  a  contract  made  in  another  State  by 
one  of  its  inhabitants,  the  contract  would  have  to  be  in  writing.  The 
rule  extends  at  least  to  contracts  by  Massachusetts  testators.  It 
might  be  possible  to  treat  the  words,  "  signed  by  the  party  whose  ex- 
ecutor or  administrator  is  sought  to  be  charged,''  as  meaning  "  signed 
by  the  party  whose  executor  or  administrator  is  sought  to  be  charged 
in  Massachusetts,"  and  to  construe  the  whole  statute  as  directed  only 
to  procedure.  Compare  Fant  v.  Miller,  17  Grat.  47,  72  et  seq.  ;  Denny 
V.  Williams,  5  Allen,  1,  3,  9.  Upon  this  question  also  we  express  no 
opinion.  All  that  we  decide  is  that  the  statute  does  apply  to  a  case 
like  the  present. 

The  law  of  the  testator's  domicil  is  the  law  of  the  will.  A  contract 
to  make  a  will  means  an  effectual  will,  and  therefore  a  will  good  by  the 
law  of  the  domicil.  In  a  sense,  the  place  of  performance,  as  well  as 
the  forum  for  a  suit  in  case  of  breach,  is  the  domicil.  We  do  not  draw 
the  conclusion  that  therefore  the  validity  of  all  such  contracts,  wher- 
ever sued  on,  must  depend  on  the  law  of  the  domicil.  That  would 
leave  man}'  such  contracts  in  a  state  of  indeterminate  validity,  until 
the  testator's  death,  as  he  may  change  his  domicil  so  long  as  he  can 
travel.  But  the  consideration  shows  that  the  final  domicil  is  more  con- 
cerned in  the  policy  to  be  insisted  on  than  any  other  jurisdiction,  and 
justifies  it  in  framing  its  rules  accordingly.  There  would  be  no  ques- 
tion to  be  argued  if  the  law  were  in  terms  a  rule  of  evidence.  It  is 
equally  open  for  a  State  to  declare,  upon  the  same  considerations 
which  dictate  a  rule  of  evidence,  that  a  contract  must  have  certain  form 
if  it  is  to  be  enforced  against  its  inhabitants  in  its  courts.  Legislation 
of  this  kind  for  contracts  which  thus  necessarily  reach  into  the  jurisdic- 
tion in  their  operation  hardly  goes  as  far  as  statutes  dealing  with  sub- 
stantive liability  which  have  been  upheld.  Commonwealth  v.  Macloon, 
101  Mass.  1. 

If  the  statute  applies,  the  fact  that  the  plaintiff  has  furnished  the 
stipulated  consideration  will  not  prevent  its  application. 

Exceptions  overruled. 


822  POLSON   V.  STEWART.  fCHAP.  XVI. 


POLSON  V.  Stewart. 

Supreme  Judicial  Court  of  Massachusetts.     1897. 

[Reported  167  Massachusetts,  211.] 

Holmes,  J.  This  is  a  bill  to  enforce  a  covenant  made  by  the 
defendant  to  his  wife,  the  plaintiff's  intestate,  in  North  Carolina,  to 
surrender  all  his  marital  rights  in  certain  land  of  hers.  The  land  is 
in  Massachusetts.  The  parties  to  the  covenant  were  domiciled  in 
North  Carolina.  According  to  the  bill,  the  wife  took  steps  which 
under  the  North  Carolina  statutes  gave  her  the  right  to  contract  as 
^feme  sole  with  her  husband  as  well  as  with  others,  and  afterwards 
released  her  dower  in  the  defendant's  lands.  In  consideration  of  this 
release,  and  to  induce  his  wife  to  forbear  suing  for  divorce,  for  which 
she  had  just  cause,  and  for  other  adequate  considerations,  the  defend- 
ant executed  the  covenant.     The  defendant  demurs. 

The  argument  in  support  of  the  demurrer  goes  a  little  further  than 
is  open  on  the  allegations  of  the  bill.  It  suggests  that  the  instrument 
which  made  the  wife  a  "  free  trader,"  in  the  language  of  the  statute, 
did  not  go  into  effect  until  after  the  execution  of  the  release  of  dower 
and  of  the  defendant's  covenant.  But  the  allegation  is  that  the  last 
mentioned  two  deeds  were  executed  after  the  wife  became  a  free 
trader,  as  the}^  probabl}'  were  in  fact,  notwithstanding  their  bearing 
date  earlier  than  the  registration  of  the  free  trader  instrument.  We 
must  assume  that  at  the  date  of  their  dealings  together  the  defendant 
and  his  wife  had  as  large  a  freedom  to  contract  together  as  the  laws 
of  their  domieil  could  give  them. 

But  it  is  said  that  the  laws  of  the  parties'  domieil  could  not  author- 
ize a  contract  between  them  as  to  lands  in  Massachusetts.  Obviously 
this  is  not  true.  It  is  true  that  the  laws  of  other  States  cannot  render 
valid  conveyances  of  property  within  our  borders  which  our  laws  say 


SECT.  III.]  POLSON   V.   STEWART.  823 

are  void,  for  the  plain  reason  that  we  have  exclusive  power  over  the 
res.  Ross  v.  Ross,  129  Mass.  243,  2-16  ;  Hallgarten  v.  Oldham,  135 
Mass.  1,  7,  8.  But  the  same  reason  inverted  establishes  that  the  lex 
rei  Slice  cannot  control  personal  covenants,  not  purporting  to  be  con- 
veyances, between  persons  outside  the  jurisdiction,  although  concern- 
ing a  thing  within  it.  Whatever  tlie  covenant,  the  laws  of  North 
Carolina  could  subject  the  defendant's  propert}'  to  seiziu'e  on  execu- 
tion, and  his  person  to  imprisonment,  for  a  failure  to  perform  it 
Therefore,  on  principle,  the  law  of  North  Carolina  determines  the 
validity  of  the  contract.  Such  precedents  as  there  are,  are  on  the 
same  side.  The  most  important  intimations  to  the  contrar}'  which  we 
have  seen  are  a  brief  note  in  Story,  Confl.  of  Laws,  §  436,  note,  and 
the  doul)ts  expressed  in  Mr.  Dicey's  very  able  and  valuable  book. 
Lord  Cottenham  stated  and  enforced  the  rule  in  the  clearest  way  in 
£Jx  parte  Pollard,  4  Deac.  27,  40  et  seq. ;  s.  c.  Mont.  «St  Ch.  239,  250. 
So  Lord  Romilly  in  Cood  v.  Cood,  33  Beav.  314,  322.  So  in  Scot- 
land, in  a  case  like  the  present,  where  the  contract  enforced  was  the 
wife's.  Findlater  v.  Seafield,  Faculty-  Decisions,  553,  Feb.  8,  1814. 
See  also  Cuninghame  v.  Semple,  11  Morison,  4462;  Erskine,  Inst. 
Bk.  3,  tit  2,  §  40;  Westlake,  Priv.  Int  Law  (3d  ed.),  §  172;  Rorer, 
Interstate  Law  (2d  ed.),  289,  290. 

If  valid  by  the  law  of  North  Carolina  there  is  no  reason  why  the 
contract  should  not  be  enforced  here.  The  general  principle  is 
familiar.  Without  considering  the  argument  addressed  to  us  that 
such  a  contract  would  have  been  good  in  equity  if  made  here 
(Holmes  v.  Winchester,  133  Mass.  140;  Jones  v.  Chfton,  101  U.  S. 
225  ;  and  Bean  v.  Patterson,  122  U.  S.  496,  499),  we  see  no  ground 
of  polic}'  for  an  exception.  The  statutory'  limits  which  have  been 
found  to  the  power  of  a  wife  to  release  dower  (Mason  v.  Mason,  140 
Mass.  63,  and  Peaslee  v.  Peaslee,  147  Mass.  171,  181)  do  not  prevent 
a  husband  from  making  a  valid  covenant  that  he  will  not  claim  marital 
rights  with  any  person  competent  to  receive  a  covenant  from  him. 
Charles  v.  Charles,  8  Grat.  486  ;  Logan  v.  Birkett,  1  Myl.  &  K.  220  ; 
Marshall  v.  Beall,  6  How.  70.  The  competency'  of  the  wife  to  receive 
the  covenant  is  established  b}'  the  law  of  her  domicil  and  of  the  place 
of  the  contract.  The  laws  of  Massachusetts  do  not  make  it  impos- 
sible for  him  specificalh'  to  perform  his  undertaking.  He  can  give  a 
release  which  will  be  good  by  Massachusetts  law.  If  it  be  said  tliat 
the  rights  of  the  administrator  are  only  derivative  from  the  wife,  we 
agree,  and  we  do  not  for  a  moment  regard  any  one  as  privy  to  the 
contract  except  as  representing  the  wife.  But  if  then  it  be  asked 
whetlier  she  could  have  enforced  the  contract  during  her  life,  an 
answer  in  the  affirmative  is  made  easy  by  considering  exactly  what 
the  defendant  undertook  to  do.  So  far  as  occurs  to  us,  he  undertook 
three  things :  first,  not  to  disturb  his  wife's  enjoyment  while  she  kept 
her  property  ;  secondly,  to  execute  whatever  instrument  was  necessary 
in  order  to  release  his  rights  if  she  conveyed  ;  and  thirdly,  to  claim  no 


824  POLSON   V.    STEWART.  [CHAP.   XVL 

rights  on  her  death,  but  to  do  whatever  was  necessary  to  clear  the 
title  from  such  rights  then.  All  these  things  were  as  capable  of  per- 
formance in  Massachusetts  as  they  would  have  been  in  North  Caro- 
lina. Indeed,  all  the  purposes  of  the  covenant  could  have  been 
secured  at  once  in  the  lifetime  of  the  wife  by  a  joint  conveyance  of 
the  propert}-  to  a  trustee  upon  trusts  properly  limited.  It  will  be 
seen  that  the  case  does  not  raise  the  question  as  to  what  the  common 
law  and  the  presumed  law  of  North  Carolina  would  be  as  to  a  North 
Carolina  contract  calling  for  acts  in  Massachusetts,  or  concerning 
property  in  Massachusetts,  which  could  not  be  done  consistently  with 
Massachusetts  law. 

With  regard  to  the  construction  of  the  defendant's  covenant  we  have 
no  doubt.  It  is  "to  surrender,  convey,  and  transfer  to  said  Kitt}'  T. 
Poison  Stewart,  Jr.,  and  her  heirs,  all  the  rights  of  him,  the  said 
Henry  Stewart,  Jr.,  in  and  to  the  lands  and  property  above  described, 
which  he  may  have  acquired  by  reason  of  the  aforesaid  marriage,  and 
the  said  Kitty  T.  Poison  Stewart,  Jr.,  is  to  have  the  full  and  absolute 
control  and  possession  of  all  of  said  propert}-  free  and  discharged  of 
all  the  rights,  claims,  or  demands  of  every  nature  whatsoever  of  the 
said  Henr\-  Stewart,  Jr."  Notwithstanding  the  decision  of  the  major- 
ity in  Rochon  v.  Lecatt,  2  Stew.  (Ala.)  429,  we  think  that  it  would 
be  quibbling  with  the  manifest  intent  to  put  an  end  to  all  claims  of 
the  defendant  if  we  were  to  distinguish  between  vested  rights  which 
had  and  those  which  had  not  yet  become  estates  in  the  land,  or 
between  claims  during  the  life  of  the  wife  and  claims  after  her  death. 
It  is  plain,  too,  that  the  words  import  a  covenant  for  such  further 
assurance  as  may  be  necessar}'  to  carry  out  the  manifest  object  of 
the  deed.  See  Marshall  v.  Beall,  6  How.  70  ;  Ward  v.  Thompson, 
6  Gill  &  Johns.  349;  Hutchins  v.  Dixon,  11  Md.  29;  Hamrico  v. 
Laird.  10  Yerger,  222;  Ma.son  v.  Deese,  30  Ga.  308;  McLeod  v. 
Board,  30  Tex.  238. 

Objections  are  urged  against  the  consideration.  The  instrument  is 
alleged  to  have  been  a  covenant.  It  is  set  forth,  and  mentions  one 
dollar  as  the  consideration.  But  the  bill  alleges  others,  to  which  we 
have  referred.  It  is  argued  that  one  of  them,  forbearance  to  bring 
a  well-founded  suit  for  divorce,  was  illegal.  The  judgment  of  the 
majorit}'  in  Merrill  v.  Peaslee,  146  Mass.  460,  463,  expressly  guarded 
itself  against  sanctioning  such  a  notion,  and  decisions  of  the  greatest 
weight  referred  to  in  that  case  show  that  such  a  consideration  is  both 
suflicient  and  legal.  Newsome  v.  Newsorae,  L.  R.  2  P.  «fe  D.  306,  312 ; 
Wilson  V.  Wilson,  1  H.  L.  Cas.  538,  574;  Besant  v.  Wood,  12 
Ch.  D.  605,  622  ;  Hart  v.  Hart,  18  Ch.  D.  670.  685  ;  Adams  v.  Adams, 
91  N.  Y.  381;  Sterlings.  Sterling,  12  Ga.  201.  Then  it  is  said  that 
the  wife's  agreement  in  bar  of  her  dower  was  invalid,  because  it  had 
not  the  certificate  that  she  had  been  examined,  etc.,  as  required  by 
the  North  Carolina  statutes  annexed  to  the  bill.  Whether  it  was 
invalid   or  not,  the  defendant  was  content  with  it,  and  accepted  the 


SECT.  III.]  POLSOX    V.    STEWART.  825 

execution  of  it  as  a  consideration.  This  being  so,  it  would  be  hard  to 
say  tiiat  it  was  not  one,  even  if  without  legal  eflfect.  Whether  void  or 
not,  it  is  alleged  to  have  been  performed  ;  and  finall}-,  if  it  was  void,  it 
was  void  on  its  face,  as  matter  of  law,  and  the  husband  must  be  taken 
to  have  known  it,  so  that  the  most  that  could  be  done  would  be  to  dis- 
regard it ;  if  that  were  done,  the  other  considerations  would  be  suffi- 
cient.    See  Jones  v.  Waite,  5  Bing.  N.  C.  341,  351. 

Demurrer  overruled. 

Field,  C.  J.  I  cannot  assent  to  the  opinion  of  a  majorit}-  of  the 
court.  By  our  law  husband  and  wife  are  under  a  general  disability 
or  incapaeit}'  to  make  contracts  with  each  other.  The  decision  in 
"Whitney  v.  Closson,  138  Mass.  49,  shows,  I  think,  that  the  contract 
sued  on  would  not  be  enforced  if  the  husband  and  wife  had  been 
domiciled  in  Massachusetts  when  it  was  made.  As  a  conveyance 
made  directly  between  husband  and  wife  of  an  interest  in  Massa- 
chusetts land  would  be  void  although  tlie  parties  were  domiciled  in 
North  Carolina  when  it  was  made,  and  by  the  laws  of  North  Carolina 
were  authorized  to  make  such  a  conveyance,  so  I  think  that  a  contract 
for  such  a  conveyance  between  the  same  persons  also  would  be  void. 
It  seems  to  me  illogical  to  say  that  we  will  not  permit  a  conveyance 
of  Massachusetts  land  directlv  between  husband  and  wife,  wherever 
they  ma}'  have  their  domicil,  and  yet  saj-  that  they  may  make  a  con- 
tract to  convey  such  land  from  one  to  the  other  which  our  courts 
will  specifically  enforce.  It  is  possible  to  abandon  the  rule  of  lex  rei 
sitm,  but  to  keep  it.  for  conveyances  of  land  and  to  abandon  it  for 
contracts  to  conve}'  land  seems  to  me  unwarrantable. 

The  question  of  the  validity  of  a  mortgage  of  land  in  this  Common- 
wealth is  to  be  decided  by  the  law  here,  although  the  mortgage  was 
executed  elsewhere  where  the  parties  resided,  and  would  have  been 
void  if  upon  land  there  situated.  Goddard  v.  Sawyer,  9  Allen,  78. 
"  It  is  a  settled  principle,  that  '  the  title  to,  and  the  disposition  of, 
real  estate  must  be  exclusively  regulated  by  the  law  of  the  place  in 
which  it  is  situated.'  "  Cutter  v.  Davenport,  1  Pick.  81  ;  Osborn  v. 
Adams,  18  Pick.  245.  The  testamentary  execution  of  a  power  of 
appointment  given  by  will  in  relation  to  land  is  governed  by  the  lex 
situs,  or  the  law  of  the  domicil  of  the  donor  of  the  power.  Sewall  v. 
Wilmer,  132  Mass.  131. 

The  plaintiff,  merely  as  administrator,  cannot  maintain  the  bill. 
Caverly  v.  Simpson,  132  Mass.  462,  464.  The  plaintiff  must  pro- 
ceed on  the  ground  that  Mrs.  Henry  Stewart,  Jr.,  acquired  by  the 
instruments  executed  in  North  Carolina  the  right  to  have  conveyed 
or  released  to  her  and  her  heirs  by  her  husband  all  the  interest  he 
had  as  her  husband  in  her  lands  in  Massachusetts  ;  that  this  right 
descended  on  her  death  to  her  heirs,  according  to  the  law  of  Massa- 
chusetts ;  and  that  the  plaintiff,  being  an  heir,  has  acquired  the 
interest  of  the  other  heirs,  and  therefore  brings  the  bill  as  owner  of 


826  POLSOX    V.    STEWAET.  [CHAP.  XVI. 

this  right.  The  plaintiff,  as  heir,  claims  by  descent  from  Mrs.  Stewart, 
and  if  the  contract  sued  on  is  void  as  to  her,  it  is  void  as  to  him. 

It  is  onlv  on  the  ground  that  the  contract  convej-ed  an  equitable 
title  that  the  plaintiff  as  heir  has  any  standing  in  court.  His  counsel 
founds  his  argument  on  the  distinction  between  a  conveyance  of  the 
legal  title  to  land  and  a  contract  to  convey  it.  If  the  instrument 
relied  on  purported  to  convey  the  legal  title,  his  counsel  in  effect 
admits  that  it  would  be  void  by  our  law.  He  accepts  the  doctrine 
stated  in  Ross  v.  Ross,  129  Mass.  243,  246,  as  follows:  "And  the 
validity  of  any  transfer  of  real  estate  by  act  of  the  owner,  whether 
inter  vivos  or  by  will,  is  to  be  determined,  even  as  regards  the  capac- 
ity of  the  grantor  or  testator,  by  the  law  of  the  State  in  which  the 
land  is  situated."  As  a  contract  purporting  to  convey  a  right  in 
equity  to  obtain  the  legal  title  to  land,  he  contends  that  it  is  valid. 

I  do  not  dispute  the  cases  cited  with  reference  to  contracts  concern- 
ing personal  property,  but  the  rule  at  common  law  in  regard  to  the 
capacity  of  parties  to  make  contracts  concerning  real  property,  as  I 
read  the  cases  and  text-books,  is  that  the  lex  situs  governs.  Cochran 
V.  Benton,  126  Ind.  58;  Doyle  v.  McGuire,  38  la.  410;  Sell  v.  Miller, 

II  Ohio  St.  331  ;  Johnston  v.  Gawtry,  11  Mo.  App.  322;  Frierson  v. 
Williams,  .57  Miss.  451. 

Dicey  on  the  Conflict  of  Laws  is  the  latest  test-book  on  the  subject. 
He  states  the  rule  as  follows  :  — 

Page  Ixxxix.     "(B).    Validity  of  Contract,     (i)    Capacity. 

"Rule  146.  Subject  to  the  excei)tions  hereinafter  mentioned,  a 
person's  capacity  to  enter  into  a  contract  is  governed  by  the  law  of 
his  domicil  (lex  domicilii)  at  the  time  of  the  making  of  the  contract. 

"  (1)  Jf  lie  has  such  capacity  by  that  law,  the  contract  is,  in  so  far 
as  its  validity  depends  upon  his  capacity,  valid. 

"  (2)  If  he  has  not  such  capacity  by  that  law,  the  contract  is 
invalid. 

"  Exception  1.  A  person's  capacity  to  bind  himself  b}'  an  ordinary 
mercantile  contract  is  (prol)ably)  governed  by  the  law  of  the  country 
■where  the  contract  is  made  {lex  loci  contractus)  [?]. 

"  Exception  2.  A  person's  capacity  to  contract  in  respect  of  an 
immovable  (land)  is  governed  by  tlie  lex  situs." 

Page  xcii.      "  (A).    Contracts  with  regard  to  Immovables. 

"Rule  151.  The  effect  of  a  contract  with  regard  to  an  immovable 
is  governed  by  the  |)roper  law  of  the  contract  [?]. 

"The  proper  law  of  such  contract  is,  in  general,  the  law  of  the 
country  where  the  immovable  is  situate  (lex  situs)." 

On  page  517  et  seq.  he  states  the  law  in  the  same  way,  with  numer- 
ous illustrations,  but  with  some  hesitation  as  to  the  law  governing  the 
form  of  contracts  to  convey  immovables.  See  page  xc. ,  Rule  147, 
Exception  1.  For  American  notes  with  cases,  see  page  527  et  seq. 
In  the  Appendix,  page  769,  note  (B),  he  discusses  the  subject  at 
leno^th,  and  with  the  same  result.     Some  of  the  cases  cited  are  the 


SECT,  ni,]  POLSON   V.    STEWART.  827 

following :  Succession  of  Larendon,  39  La.  An.  952  ;  Besse  v.  Pel- 
lochoux,  73  111.  285;  Fuss  v.  Fuss,  24  Wis.  256;  Moore  v.  Church, 
70  la.  208 ;  Heine  v.  Mechanics  &  Traders  Ins.  Co.  45  La.  An 
770;  First  National  Bank  of  Attleboro  v.  Hughes,  10  Mo.  App.  7; 
Ordronaux  v.  Rey,  2  Sandf.  Ch.  33  ;  Adams  v.  Clutterbuck,  10  Q.  B.  D. 
403  ;  Chapman  v.  Robertson,  6  Paige,  627,  630. 

Phillimore  in  4  Int.  Law  (3d  ed.),  596,  states  the  law  as  follows  :  — 

"  DCCXXXV.  1.  The  case  of  a  contract  respecting  the  transfer 
of  immovable  pro):)ert3'  illustrates  the  variet}-  of  the  rules  which  the 
foreign  writers  upon  private  international  law  consider  applicable  to  a 
contract  to  which  a  foreigner  is  a  party :  they  say  that, 

"1.  The  capacity  of  the  obligor  to  enter  into  the  contract  is  deter- 
mined by  reference  to  the  law  of  his  domicil. 

"  ii.    The  like  capacity  of  the  obligee  by  the  law  of  his  domicil. 

"  iii.  The  mode  of  alienation  or  acquisition  of  the  immovable  prop- 
erty is  to  be  governed  by  the  law  of  the  situation  of  that  property. 

"  iv.  The  external  form  of  the  contract  is  to  be  governed  by  the  law 
of  the  place  in  which  the  contract  is  made. 

''It  is  even  suggested  by  Foelix,  that  sometimes  the  interpretation 
of  the  contract  may  require  the  application  of  a  fifth  law. 

"  DCCXXXVI.  The  Law  of  England,  and  the  Law  of  the  North 
American  United  States,  require  the  application  of  the  lex  rei  sitce  to 
all  the  four  predicaments  mentioned  in  the  last  section. 

"  DCCXXXVII.  But  a  distinction  is  to  be  taken  between  contracts 
to  transfer  property  and  the  contracts  by  which  it  is  transferred.  The 
former  are  valid  if  executed  according  to  the  lex  loci  contractus  ;  the 
latter  require  for  their  validity  a  compliance  with  the  forms  prescribed 
by  the  lex  rei  sitCB.  Without  this  compliance  the  dominium  in  the 
property  will  not  pass." 

To  the  same  effect  as  to  the  capacit}'  of  the  parties  are  Rattigan, 
Priv.  Int.  Law,  128;.  Whart.  Confl.  of  Laws  (2d  ed.),  §  296;  Story, 
Confl.  of  Laws  (8th  ed.),  §§  424-431,  435;  Rorer,  Interstate  Law, 
263 ;  Nelson,  Priv.  Int.  Law,  147,  260.  See  Westlake,  Priv.  Int. 
Law  (3d  ed.),  §§  156,  167  et  seq. 

On  reason  and  authority  I  think  it  cannot  be  held  that,  although  a 
deed  between  a  husband  and  his  wife,  domiciled  in  North  Carolina,  of 
the  rights  of  each  in  the  lands  of  the  other  in  Massachusetts,  is  void 
as  a  conveyance  by  reason  of  the  incapacity  of  the  parties  under  the 
law  of  Massachusetts  to  make  and  receive  such  a  conveyance  to  and 
from  each  other,  yet,  if  there  are  covenants  in  the  deed  to  make  a 
good  title,  the  covenants  can  be  specifically  enforced  by  our  courts, 
and  a  conveyance  compelled,  which,  if  voluntarily  made  between  the 
parties,  would  be  void. 

I  doubt  if  all  of  the  instruments  relied  on  have  been  executed  in 
accordance  with  the  statutes  of  North  Carolina.  By  section  1828  of  the 
statutes  of  that  State  set  out  Ln  the  papers,  the  wife  became  a  free 
trader  from  the  time  of  registration.     This  I  understand  is  January 


828  POLSON   V.    STEWART,  [CHAP.  XVI. 

7,  1893.  Exhibit  B  purports  to  have  been  executed  before  that  time, 
to  wit,  January  4,  1893.  There  does  not  appear  to  have  been  any 
examination  of  the  wife  separate  and  apart  from  her  husband,  as 
required  by  section  1835.  If  Exhibit  B  fails,  there  is  at  least  a  partial 
failure  of  consideration  for  Exhibit  C.  It  is  said  that  an  additional 
consideration  is  alleged,  viz.  the  wife's  forbearing  to  bring  a  suit  for 
divorce.  Whether  this  last  is  a  sufficient  consideration  for  a  contract 
I  do  not  consider.  It  is  plain  enough  that  there  was  an  attempt  on 
the  part  of  the  husband  and  wife  to  continue  to  live  separate  and 
apart  from  each  other  without  divorce,  and  to  release  to  each  other  all 
the  property  rights  each  had  in  the  property  of  the  other.  If  the 
release  of  one  fails,  I  think  that  this  court  should  not  specifically 
enforce  the  release  of  the  other ;  mutuality  in  this  respect  is  of  the 
essence  of  the  transaction.  If  the  husband  owned  lands  in  Massachu- 
setts, and  had  died  before  his  wife,  I  do  not  think  that  Exhibit  B, 
even  if  it  were  executed  according  to  the  statutes  of  North  Carolina, 
and  the  wife  duly  examined  and  a  certificate  thereof  duly  made,  would 
bar  her  of  her  dower.  Our  statutes  provide  how  dower  may  be  barred. 
Pub.  Sts.  c.  124,  §§  6-9.  Exhibit  B  is  not  within  the  statute.  See 
Mason  v.  Mason,  140  Mass.  63.  Antenuptial  contracts  have  been 
enforced  here  in  equity  so  as  to  operate  as  a  bar  of  dower,  even  if 
they  did  not  constitute  a  legal  bar.  Jenkins  v.  Holt,  109  Mass.  261- 
But  postnuptial  contracts,  so  far  as  I  am  aware,  never  have  been 
enforced  here  so  as  to  bar  dower,  unless  they  conform  to  the  statutes. 
Whitney  v.  Closson,  138  Mass.  49.  Whatever  may  be  true  of  con- 
tracts between  husband  and  wife  made  in  or  when  they  are  domiciled 
in  other  jurisdictions,  so  far  as  personal  property  or  personal  liability 
is  concerned,  I  think  that  contracts  affecting  the  title  to  real  property 
situate  within  the  Commonwealth  should  be  such  as  are  authorized  by 
our  laws.     I  am  of  opinion  that  the  bill  should  be  dismissed. 


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